CREDIT AGREEMENT
by and among
TIFFANY & CO.,
TIFFANY AND COMPANY,
TIFFANY & CO. INTERNATIONAL,
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
THE BANK OF NEW YORK,
as Issuing Bank and as Swing Line Lender,
THE BANK OF NEW YORK,
as Arranging Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
$130,000,000
Dated as of June 26, 1995
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Credit Agreement, dated as of June 26, 1995, by and among
Tiffany & Co., a Delaware corporation (the "Parent"), Tiffany and
Company, a New York corporation ("Tiffany"), Tiffany & Co.
International, a Delaware corporation ("Tiffany International"),
each Subsidiary Borrower which is a signatory hereto or becomes a
party hereto pursuant to the provisions of Section 2.23, the
Lenders party hereto, The Bank of New York ("BNY"), as Issuing
Bank and as Swing Line Lender, BNY, as Arranging Agent (in such
capacity, the "Arranging Agent") and BNY, as Administrative Agent
(in such capacity, the "Administrative Agent").
I. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
A. Definitions
When used herein, each of the following terms shall
have the meaning ascribed thereto unless the context hereof
otherwise specifically requires:
"ABR Advances": the Loans (or any portions thereof) at
such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base
Rate; each an "ABR Advance".
"Accountants": Coopers & Lybrand, or such other firm of
independent certified public accountants of recognized national
standing as shall be selected by the Parent and reasonably sat-
isfactory to the Administrative Agent.
"Accumulated Funding Deficiency": as defined in Section
302 of ERISA.
"Acquisition": with respect to any Person, the purchase
or other acquisition by such Person, by any means whatsoever
(including by devise, bequest, gift, through a dividend or
otherwise), of (a) Stock of, or other equity securities of, any
other Person if, immediately thereafter, such other Person would
be either a consolidated subsidiary of such Person or otherwise
under the control of such Person, (b) any business, going concern
or division or segment thereof, or (c) the Property of any other
Person other than in the ordinary course of business, provided,
however, that no acquisition of substantially all of the assets,
or any division or segment, of such other Person shall be deemed
to be in the ordinary course of business.
"Advance": an ABR Advance, a Eurodollar Advance, a Core
Currency Euro Advance or a Swing Line Negotiated Rate Advance, as
the case may be.
"Adverse Tax Position": as defined in Section 2.13(g).
2
"Affiliate": with respect to any Person at any time and
from time to time, any other Person (other than a consolidated
subsidiary of such Person) which, at such time (a) controls such
Person, or (b) is under common control with such Person. The
term "control", as used in this definition with respect to any
Person, means the power, whether direct, or indirect through one
or more intermediaries, to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities or other interests, by contract or
otherwise.
"Aggregate Commitments": on any date, the sum of all
Commitments on such date.
"Aggregate Credit Exposure": as of any date of de-
termination, the sum of (i) the outstanding principal amount
(determined on the basis of the Dollar Equivalent for each
outstanding Alternate Currency Loan) of the Loans of all Lenders
plus (ii) an amount equal to the Letter of Credit Exposure.
"Agreement": this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest
per annum equal to the higher of (i) the Federal Funds Rate in
effect on such date plus 1/2 of 1% or (ii) the BNY Rate in effect
on such date.
"Alternate Currency": any Core Currency (other than
Dollars) or Non-Core Currency.
"Alternate Currency Bid Loan": each Bid Loan denomi-
nated in an Alternate Currency.
"Alternate Currency Equivalent": with respect to any
Alternate Currency, on any date of determination thereof, the
amount of such Alternate Currency which could be purchased with
the amount of Dollars involved in such computation at the spot
rate at which such Alternate Currency may be exchanged into
Dollars as set forth on such date on (i) Reuters pages MGTY,
MGTX, SCNY or BNMX or (ii) Dow Jones Telerate pages 262, 264,
265, 266 or 9993 (or any successor pages) or, if such rate does
not appear on such pages, at the spot exchange rate therefor as
determined by the Administrative Agent as of 11:00 A.M. (London
time) on such date of determination thereof for delivery (x) in
the case of an exchange of Canadian Dollars into Dollars, one
Business Day later and (y) in all other cases, two Business Days
later. In the event that, on any date of determination, a spot
rate for an individual Alternate Currency appears on both a page
of Reuters set forth above and a page of Dow Jones Telerate set
forth above, the Alternate Currency Equivalent of such Alternate
Currency shall be the arithmetic mean of such spot rates.
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"Alternate Currency Loan": any Alternate Currency
Revolving Loan, Alternate Currency Bid Loan, Alternate Currency
Negotiated Rate Loan, Alternate Currency Swing Line Loan or
Individual Currency Loan.
"Alternate Currency Negotiated Rate Loan": each
Negotiated Rate Loan denominated in an Alternate Currency.
"Alternate Currency Revolving Loan": each Revolving
Loan denominated in a Core Currency (other than Dollars).
"Alternate Currency Swing Line Loan": each Swing Line
Loan denominated in a Core Currency (other than Dollars).
"Applicable": with respect to Regulation D being
applicable to any determination of a Core Currency Euro Rate or
an Individual Currency Rate, that Regulation D reserves would be
applicable to the Core Currency Euro Advance or the Individual
Currency Loan, as the case may be, as to which such interest rate
would apply (including by giving effect to the assumption that
the applicable Lender had funded such Core Currency Euro Advance
or such Individual Currency Loan, as the case may be, through the
purchase of a Core Currency or a Non-Core Currency, as the case
may be, deposit by a subsidiary or affiliate of such Lender in
the London interbank market and the transfer thereof to such
Lender from such subsidiary or affiliate).
"Applicable Currency":
(a) With respect to any Revolving Loan or Swing Line
Loan for any applicable Borrower, Dollars and each Available
Alternate Currency which is a Core Currency as follows:
(i) in the case of Dollars: a Domestic Borrower,
(ii) in the case of French Francs: the French
Borrower,
(iii) in the case of German Marks: the German
Borrower,
(iv) in the case of Japanese Yen: the Japanese
Borrower, and
(v) in the case of Sterling Pounds: the Sterling
Borrower.
(b) With respect to any Bid Loan, the Currency
specified by the applicable Borrower in its Bid Request for such
Bid Loan.
(c) With respect to any Negotiated Rate Loan, the
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Currency specified in the Negotiated Rate Confirmation for such
Negotiated Rate Loan.
(d) With respect to any Individual Currency Loan for
any applicable Borrower, each Available Alternate Currency which
is a Non-Core Currency as follows:
(i) in the case of Australian Dollars: the
Australian Borrower,
(ii) in the case of Canadian Dollars: the Canadian
Borrower,
(iii) in the case of Hong Kong Dollars, the
Hong Kong Borrower,
(iv) in the case of Italian Lira: the Italian
Borrower,
(v) in the case of Korean Won: the Korean
Borrower,
(vi) in the case of Malaysian Ringgit: the
Malaysian Borrower,
(vii) in the case of Mexican Pesos: the
Mexican Borrower,
(viii) in the case of Philippine Pesos: the
Philippine Borrower,
(ix) in the case of Singaporean Dollars: the
Singaporean Borrower,
(x) in the case of Swiss Francs: the Swiss
Borrower,
(xi) in the case of New Taiwan Dollars: the
Taiwanese Borrower, and
(xii) in the case of Thai Baht: the Thai
Borrower.
"Applicable Lending Office": (i) as to any Lender, with
respect to Revolving Loans in any Core Currency, initially, the
office, branch or affiliate of such Lender designated as such
Lender's lending office for Revolving Loans in such Core Currency
on Exhibit R, and thereafter, such other office, branch or
affiliate of such Lender through which it shall be making or
maintaining Revolving Loans in such Core Currency, as reported by
such Lender to the Administrative Agent and the Parent, (ii) as
to the Swing Line Lender, with respect to Swing Line Loans in any
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Core Currency, initially, the office, branch or affiliate of such
Lender designated as the Swing Line Lender's lending office for
such Swing Line Loans in such Core Currency on Exhibit R, and
thereafter, such other office, branch or affiliate of the Swing
Line Lender through which it shall be making or maintaining Swing
Line Loans in such Core Currency, as reported by the Swing Line
Lender to the Administrative Agent and the Parent, (iii) as to
any Lender, with respect to any Bid Loan, the lending office,
branch or affiliate of such Lender designated as such Lender's
lending office for such Bid Loan in its Bid for such Bid Loan,
(iv) as to any Lender, with respect to Individual Currency Loans
in any Non-Core Currency, initially, the office, branch or
affiliate of such Lender designated as such Lender's lending of-
fice for such Individual Currency Loans in such Non-Core Currency
on Exhibit R, and thereafter, such other office, branch or
affiliate of such Lender through which it shall be making or
maintaining Individual Currency Loans in such Non-Core Currency,
as reported by such Lender to the Administrative Agent and the
Parent, and (v) as to any Lender, with respect to any Negotiated
Rate Loan, the lending office, branch or affiliate of such Lender
designated as such Lender's lending office for such Negotiated
Loan in the Negotiated Rate Confirmation for such Negotiated Rate
Loan.
"Applicable Margin": (i) with respect to the unpaid
principal amount of ABR Advances, the applicable percentage set
forth below in the column entitled "Applicable Margin for ABR Ad-
vances" and (ii) with respect to the unpaid principal amount of
Eurodollar Advances, Core Currency Euro Advances and Individual
Currency Loans, the applicable percentage set forth below in the
column entitled "Applicable Margin for Eurodollar/Core Currency
Euro Advances/Individual Currency Loans":
Applicable
Margin for
Eurodollar
Advances/Core
Applicable Currency Euro
Margin for Advances/
ABR Individual Currency
Pricing Level Advances Loans
----------------- -------------- --------------------
Pricing Level I 0% 0.2000%
Pricing Level II 0% 0.2700%
Pricing Level III 0% 0.2750%
Pricing Level IV 0% 0.4000%
Pricing Level V 0% 0.4000%
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"Applicable Payment Office": in the case of:
(i) the Administrative Agent, (x) in respect of all
Loans (other than Alternate Currency Loans),
Letters of Credit designated in Dollars, fees and
other amounts owing under this Agreement, the
office of the Administrative Agent listed in
Exhibit Q as its "Domestic Payment Office", and
(y) in respect of Alternate Currency Loans and
Letters of Credit designated in Alternate
Currencies, the office of the Administrative Agent
listed in Exhibit Q as its payment office for the
applicable Alternate Currency, or such other
office or offices as the Administrative Agent may
from time to time hereafter designate in writing
as such to the Parent, each Lender and each Bor-
rower;
(ii) the Swing Line Lender, in respect of each Swing
Line Loan, the office of the Swing Line Lender
listed in Exhibit R as the payment office for the
applicable Core Currency in which such Swing Line
Loan is made or such other office or offices as
the Swing Line Lender may from time to time
hereafter designate in writing as such to the
Administrative Agent, the Parent and each Swing
Line Borrower;
(iii) any other Lender, (w) in respect of each Revolving
Loan, the office of such Lender listed in
Exhibit R as its payment office for the applicable
Core Currency or such other office or offices as
such Lender may from time to time hereafter desig-
nate in writing as such to the Administrative
Agent, the Parent and each Borrower, (x) in
respect of each Individual Currency Loan, the of-
fice of such Lender listed in Exhibit R as its
payment office for the applicable Non-Core
Currency or such other office or offices as such
Lender may from time to time hereafter designate
in writing as such to the Administrative Agent,
the Parent and each Borrower, (y) in respect of
each Bid Loan, the office of such Lender listed in
such Lender's Bid for such Bid Loan, and (z) in
respect of each Negotiated Rate Loan, the office
of such Lender listed in the Negotiated Rate
Confirmation for such Negotiated Rate Loan; and
(iv) the Issuing Bank, in respect of each Letter of
Credit, the office of the Issuing Bank listed in
Exhibit R as the payment office for the applicable
Currency in which such Letter of Credit is issued
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or such other office or offices as the Issuing
Bank may from time to time hereafter designate in
writing as such to the Administrative Agent and
the Parent.
"Assignment and Acceptance Agreement": an assignment
and acceptance agreement executed by an assignor and an assignee
pursuant to which the assignor assigns to the assignee all or any
portion of such assignor's Loans, Commitment, Individual Currency
Commitments and other rights and obligations under the Loan
Documents, substantially in the form of Exhibit D.
"Assignment Fee": as defined in Section 11.7(b).
"Australian Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Australia and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Australian Dollars": freely transferable lawful money
of Australia.
"Availability Percentage": with respect to any Lender
at any time, a percentage equal to a fraction (x) the numerator
of which is
(A) the Commitment of such Lender, minus
(B) the sum of (I) the aggregate principal amount of
all Revolving Loans then outstanding from such Lender (de-
termined on the basis of the Dollar Equivalent for each
outstanding Alternate Currency Revolving Loan), plus (II)
the aggregate principal amount of all Individual Currency
Loans then outstanding from such Lender (determined on the
basis of the Dollar Equivalent of each such Individual
Currency Loan), plus (III) the SL/LC Credit Exposure of such
Lender, and
(y) the denominator of which is
(A) the Aggregate Commitments, minus
(B) the sum of (I) the outstanding principal balance of
all Revolving Loans (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Revolving
Loan), plus (II) the outstanding principal balance of all
Individual Currency Loans (determined on the basis of the
Dollar Equivalent of each such Individual Currency Loan),
plus (III) the outstanding principal balance of all Swing
Line Loans, plus (IV) the Letter of Credit Exposure.
8
"Available Alternate Currency": each Alternate Currency
except to the extent that the Administrative Agent has given
notice to the Parent pursuant to Section 2.14(a) (which notice
has not been rescinded by the Administrative Agent) that one or
more Alternate Currencies are no longer available as determined
by it in its sole discretion.
"Benefited Lender": as defined in Section 11.9.
"Bid": an offer by a Lender to a Borrower, in the form
of Exhibit H, to make a Bid Loan.
"Bid Accept/Reject Letter": a notification made by the
applicable Borrower pursuant to Section 2.11 in the form of
Exhibit I.
"Bid Interest Period": as to any Bid Loan, the period
commencing on the date of such Bid Loan, and ending on the date
requested in the Bid Request with respect to such Bid Loan, which
shall not be earlier than 7 days after the date of such Bid Loan
or later than 180 days after the date of such Bid Loan; provided,
however, that (i) if any Bid Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day, unless such next succeeding
Business Day would be a date on or after the Maturity Date in
which case such Interest Period shall end on the next preceding
Business Day and (ii) no Borrower shall select a Bid Interest
Period which shall end after the Maturity Date.
"Bid Loan": each loan from a Lender to a Borrower
pursuant to Section 2.11.
"Bid Loan Confirmation": a confirmation by the Ad-
ministrative Agent to a Lender of the acceptance by the ap-
plicable Borrower of any Bid (or Portion thereof) made by such
Lender, substantially in the form of Exhibit J.
"Bid Rate": as defined in Section 2.11(b).
"Bid Request": a request by a Borrower, in the form of
Exhibit F, for Bids.
"Bid Submission Deadline": as defined in Section
2.11(b).
"BNY Rate": a rate of interest per annum equal to the
rate of interest publicly announced in New York City by BNY from
time to time as its prime commercial lending rate, such rate to
be adjusted automatically (without notice) on the effective date
of any change in such publicly announced rate.
"Borrower Addendum": an Addendum to this Agreement in
9
the form of Exhibit B pursuant to which a Subsidiary of the
Parent may become a Subsidiary Borrower pursuant to the provi-
sions of Section 2.23.
"Borrowers": collectively, Tiffany, Tiffany Inter-
national and the Subsidiary Borrowers; each a "Borrower".
"Borrowing Date": (i) in respect of Revolving Loans,
any Business Day on which the Lenders shall make Revolving Loans
to a Borrower pursuant to a Notice of Borrowing or pursuant to a
Mandatory Borrowing, (ii) in respect of Bid Loans, any Business
Day on which a Lender shall make a Bid Loan to a Borrower
pursuant to a Bid Request, (iii) in respect of Swing Line Loans,
any Business Day on which the Swing Line Lender shall make a
Swing Line Loan to a Swing Line Borrower pursuant to a Notice of
Borrowing, (iv) in respect of Negotiated Rate Loans, any Business
Day on which a Lender shall make a Negotiated Rate Loan to a
Borrower pursuant to a Negotiated Rate Confirmation, (v) in
respect of Individual Currency Loans, any Business Day on which a
Lender shall make an Individual Currency Loan to a Borrower
pursuant to a Notice of Borrowing, and (vi) in respect of Letters
of Credit, any Business Day on which the Issuing Bank issues a
Letter of Credit to a Letter of Credit Applicant pursuant to a
Letter of Credit Request.
"Borrowing/Issuance Period": as defined in Section
2.7(b)(ii).
"Business Day":
(i) for all purposes (other than as covered by clauses
(ii) and (iii) below), any day except Saturday, Sunday or a day
which in New York City is a legal holiday or a day on which
banking institutions are authorized or required by law or other
government action to close,
(ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, a
Eurodollar Advance, a Core Currency Euro Advance or an Alternate
Currency Swing Line Loan, any day which is a Business Day
described in clause (i) above, is a day for trading by and
between banks in the London interbank market and which is not a
legal holiday or a day on which banking institutions are au-
thorized or required by law or other government action to close
in the country in which the principal office of the applicable
Borrower is located, and
(iii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, an
Alternate Currency Bid Loan, an Alternate Currency Negotiated
Rate Loan, an Individual Currency Loan or a Letter of Credit
designated in an Alternate Currency, any day which is a Business
10
Day described in clause (i) above, is a day for trading by and
between banks in the London interbank market and which is not a
legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close
in the country in which (x) the principal office of the
applicable Borrower is located and (y) the Applicable Lending
Office and Applicable Payment Office of the applicable Lender is
located.
"Canadian Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Canada and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Canadian Dollars": freely transferable lawful money of
Canada.
"Change of Control": (i) any "Person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended from time to time, or any
successor thereto, and the rules and regulations issued
thereunder, as from time to time in effect) is or shall become
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
thereunder), directly or indirectly, of more than 50%, on a fully
diluted basis, of the voting and economic interests of the
Parent, or (ii) the Board of Directors of the Parent shall cease
to consist of a majority of Continuing Directors.
"Code": the Internal Revenue Code of 1986, as the same
may be amended from time to time, or any successor thereto, and
the rules and regulations issued thereunder, as from time to time
in effect.
"Commitment": with respect to each Lender, the amount
set forth opposite such Lender's name in Exhibit A-1 directly
below the column entitled "Commitment", as the same may be (x)
reduced from time to time pursuant to Section 2.9 or (y) adjusted
from time to time as a result of assignments to or from such
Lender pursuant to Section 11.7 or increases pursuant to Section
11.1.
"Commitment Percentage": as to any Lender, the per-
centage set forth opposite the name of such Lender in Exhibit A-1
under the heading "Commitment Percentage", as such percentage may
be (x) reduced from time to time pursuant to Section 2.9 or (y)
adjusted from time to time as a result of assignments to or from
such Lender of its Commitment pursuant to Section 11.7 or
increases in the Aggregate Commitments pursuant to Section 11.1.
"Commitment Period": the period from the Effective Date
until the Expiration Date.
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"Compliance Certificate": a certificate in the form of
Exhibit M.
"Consolidated": the Parent and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"Consolidated Capitalization": as of any date, total
stockholder's equity of the Parent and its Subsidiaries on a
Consolidated basis on such date (without giving effect to foreign
currency translation adjustments, except to the extent such
adjustments are in excess of $10,000,000 (whether positive or
negative)) plus Total Debt on such date.
"Contingent Obligation": as to any Person (the "sec-
ondary obligor"), any obligation of such secondary obligor (a)
guaranteeing or in effect guaranteeing any return on any Invest-
ment made by another Person, or (b) guaranteeing or in effect
guaranteeing any Indebtedness, lease, dividend or other obli-
gation ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, includ-
ing any obligation of such secondary obligor, whether contingent,
(i) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any
such primary obligation or (B) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to
purchase Property, securities or services primarily for the
purpose of assuring the beneficiary of any such primary
obligation of the ability of the primary obligor to make payment
of such primary obligation, (iv) otherwise to assure or hold
harmless the beneficiary of such primary obligation against loss
in respect thereof, and (v) in respect of the Indebtedness of any
partnership in which such secondary obligor is a general partner,
except to the extent that such Indebtedness of such partnership
is nonrecourse to such secondary obligor and its separate
Property; provided, however, that the term "Contingent Obliga-
tion" shall not include (i) the indorsement of instruments for
deposit or collection in the ordinary course of business and (ii)
guaranties by the Parent or any Subsidiary of the Parent of the
primary obligations of any other Subsidiary of the Parent
incurred in the ordinary course of business of such other
Subsidiary; and provided, further, that the amount of any such
Contingent Obligation shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of such primary
obligation and (b) the maximum amount for which such secondary
obligor may be liable pursuant to the terms of the agreement
embodying such Contingent Obligation unless such primary
obligation and the maximum amount for which such secondary
obligor may be liable are not stated or determinable, in which
case the amount of such Contingent Obligation shall be such
secondary obligor's maximum reasonably anticipated liability in
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respect thereof as determined by such secondary obligor in good
faith.
"Continuing Directors": the directors of the Parent on
the Effective Date and each other director, if such director's
nomination for election to the Board of Directors of the Parent
is recommended by a majority of the then Continuing Directors.
"Conversion Date": the date on which (i) a Eurodollar
Advance is converted to an ABR Advance, (ii) the date on which an
ABR Advance is converted to a Eurodollar Advance, (iii) the date
on which a Eurodollar Advance is converted to a new Eurodollar
Advance and (iv) the date on which a Core Currency Euro Advance
is converted to a new Core Currency Euro Advance.
"Core Currencies": Dollars, French Francs, German
Marks, Japanese Yen and Sterling Pounds (each, a "Core Cur-
rency"), and such other currencies as shall be requested by the
Parent to be a Core Currency hereunder subject to the approval of
all of the Lenders in their sole and absolute discretion.
"Core Currency Borrowers": with respect to Revolving
Loans, the Domestic Borrowers, the German Borrower, the French
Borrower, the Japanese Borrower and the Sterling Borrower; each a
"Core Currency Borrower".
"Core Currency Euro Advances": collectively, the Re-
volving Loans (or any portions thereof) at such time as they (or
such portions) are maintained and/or being maintained in a Core
Currency (other than Dollars) at a rate of interest based upon a
Core Currency Euro Rate; each a "Core Currency Euro Advance".
"Core Currency Euro Rate": with respect to each day
during each Interest Period applicable to any Core Currency Euro
Advance, a rate of interest per annum determined by dividing (and
then rounding to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) (i) the rate per annum that appears on page
3740 or 3750 of the Dow Jones Telerate Screen (or any successor
page) for deposits of the applicable Core Currency with a matu-
rity comparable to such Interest Period, determined as of 11:00
A.M. (London time) (x) on the date which is two Business Days
prior to the commencement of such Interest Period, in the case of
a Core Currency (other than Sterling Pounds) and (y) on the date
of the commencement of such Interest Period, in the case of Ster-
ling Pounds or, if such rate does not appear on page 3740 or 3750
of the Dow Jones Telerate Screen (or any successor page) or (ii)
the rate per annum equal to the offered quotation notified to the
Administrative Agent by the Reference Lender as the offered
quotation by first class banks in the London interbank market to
the Reference Lender for such Core Currency deposits of amounts
13
in immediately available funds comparable to the principal amount
of such Core Currency Euro Advance of the Reference Lender with a
maturity comparable to such Interest Period determined as of
11:00 A.M. (London time) (x) on the date which is two Business
Days prior to the commencement of such Interest Period, in the
case of a Core Currency (other than Sterling Pounds) and (y) on
the date of the commencement of such Interest Period, in the case
of Sterling Pounds, by
(b) a number equal to 1.00 minus the aggregate of
the stated maximum rates in effect on such day (without
duplication) of all reserve requirements (including marginal,
emergency, supplemental and special reserves) and similar
charges, expressed as a decimal, established by any Governmental
Authority, including those established by the Board of Governors
of the Federal Reserve System and any other banking authority to
which BNY and other major United States money center banks are
subject in respect of eurocurrency funding (currently referred
to as "Eurocurrency liabilities" in Regulation D of the Board of
Governors of the Federal Reserve System) maintained by a member
of the Federal Reserve System with deposits exceeding $1 billion
in respect of eurodollar currency funding liabilities, to the
extent Applicable;
provided, in the event that the Administrative Agent has made any
determination pursuant to Section 2.14(a)(i) in respect of such
Core Currency Euro Advance, the Core Currency Euro Rate
determined pursuant to clause (a) of this definition shall
instead be the rate reported to the Administrative Agent by the
Reference Lender as the rate based on the all-in cost of funds of
the Reference Lender to fund such Core Currency Euro Advance with
a maturity comparable to such Interest Period.
"Credit Exposure": with respect to any Lender at any
time, the sum of (i) the outstanding principal balance of all
Loans (other than Swing Line Loans) then outstanding from such
Lender (determined on the basis of the Dollar Equivalent for each
outstanding Alternate Currency Loan), plus (ii) the SL/LC Credit
Exposure of such Lender at such time.
"Credit Party": with respect to any Loan Document, any
Person (other than the Administrative Agent, the Issuing Bank,
the Swing Line Lender or any Lender) which, in accordance with
the terms of such Loan Document, is or is to be a party thereto.
"Currency": any Core Currency or Non-Core Currency.
"Default": any of the events specified in Section 9.1,
whether or not any requirement for the giving of notice, the
lapse of time, or any other condition, has been satisfied.
"Disposition": with respect to any Person, any sale,
14
assignment, transfer or other disposition by such Person, by any
means, of
(a) the Stock of, or other equity interests of, any other
Person,
(b) any business, operating entity, division or segment
thereof, or
(c) any other Property of such Person, other than sales of
inventory (other than in connection with bulk
transfers).
"Dollar Bid Loan": a Bid Loan denominated in Dollars.
"Dollar Equivalent": on any date of determination
thereof, the amount of Dollars which could be purchased with the
amount of the relevant Alternate Currency involved in such
computation at the spot rate at which Dollars may be exchanged
into such Alternate Currency as set forth on such date on (i)
Reuters pages MGTY, MGTX, SCNY or BNMX or (ii) Dow Jones Telerate
pages 262, 264, 265, 266 or 9993 (or any successor pages) or, if
such rate does not appear on such pages, at the spot exchange
rate therefor as determined by the Administrative Agent as of
11:00 A.M. (London time) on such date of determination thereof
for delivery (x) in the case of an exchange of Dollars into Cana-
dian Dollars, one Business Day later and (y) in all other cases,
two Business Days later. In the event that, on any date of
determination, a spot rate for an individual Alternate Currency
appears on both a page of Reuters set forth above and a page of
Dow Jones Telerate set forth above, the Dollar Equivalent of such
Alternate Currency shall be the arithmetic mean of such spot
rates.
"Dollar Loan": each Dollar Revolving Loan, Dollar Bid
Loan, Dollar Negotiated Rate Loan and Dollar Swing Line Loan.
"Dollar Negotiated Rate Loan": a Negotiated Rate Loan
denominated in Dollars.
"Dollar Reimbursement Amount": as defined in Section
2.19(d).
"Dollar Revolving Loan" and "Dollar Revolving Loans":
as defined in Section 2.1(b).
"Dollar Swing Line Loan" and "Dollar Swing Line Loans":
as defined in Section 2.1(c).
"Dollars": and "$": freely transferable lawful money of
the United States.
15
"Domestic Borrowers": Tiffany, Tiffany International
and each other Borrower which is a corporation organized under
the laws of the United States or any State thereof and which has
its principal place of business in the United States; each a
"Domestic Borrower".
"EBIT": for any period, the net income of the Parent
and its Subsidiaries on a Consolidated basis for such period plus
each of the following with respect to the Parent and its
Subsidiaries on a Consolidated basis to the extent utilized in
determining such net income: (a) Interest Expense and (b) provi-
sion for taxes.
"Effective Date": June 30, 1995.
"Employee Benefit Plan": an employee benefit plan
within the meaning of Section 3(3) of ERISA maintained, sponsored
or contributed to by the Parent, any of its Subsidiaries or any
ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor thereto, and
the rules and regulations issued thereunder, as from time to time
in effect.
"ERISA Affiliate": when used with respect to an Em-
ployee Benefit Plan, ERISA, the PBGC or a provision of the Code
pertaining to employee benefit plans, any Person that is a member
of any group of organizations within the meaning of Sections
414(b) or (c) of the Code or, solely with respect to applicable
provisions of the Code, Sections 414(m) or (o) of the Code, of
which the Parent or any of its Subsidiaries is a member.
"Euro Interest Period": with respect to any Eurodollar
Advance or Core Currency Euro Advance requested by any Borrower,
the period commencing on, as the case may be, the Borrowing Date
or Conversion Date with respect to such Advance and ending one,
two, three or six months thereafter, as selected by such Borrower
in its irrevocable Notice of Borrowing or its irrevocable Notice
of Conversion, provided, however, that (i) if any Euro Interest
Period would otherwise end on a day which is not a Business Day,
such Euro Interest Period shall be extended to the next suc-
ceeding Business Day unless the result of such extension would be
to carry such Euro Interest Period into another calendar month,
in which event such Euro Interest Period shall end on the im-
mediately preceding Business Day, (ii) any Euro Interest Period
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Euro Interest Period) shall end
on the last Business Day of a calendar month, and (iii) no Bor-
rower shall select a Euro Interest Period which shall end after
the Maturity Date.
16
"Eurodollar Advances": collectively, the Revolving
Loans (or any portions thereof) at such time as they (or such
portions) are made and/or being maintained at a rate of interest
based upon a Eurodollar Rate; each a "Eurodollar Advance".
"Eurodollar Rate": with respect to each day during
each Interest Period applicable to any Eurodollar Advance, a rate
of interest per annum determined by dividing (and then rounding
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%,
then to the next higher 1/16 of 1%):
(a) the rate per annum equal to the rate notified
to the Administrative Agent by the Reference Lender as the rate
at which the Reference Lender is offered Dollar deposits in the
New York interbank market, for delivery on the first day of such
Interest Period, in an amount equal approximately to such Euro-
dollar Advance for a period equal to such Interest Period, as
quoted at approximately 11:00 A.M. two Business Days prior to the
first day of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of
the stated maximum rates in effect on such day (without
duplication) of all reserve requirements (including marginal,
emergency, supplemental and special reserves), expressed as a
decimal, established by the Board of Governors of the Federal
Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in
respect of eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board of
Governors of the Federal Reserve System) maintained by a member
of the Federal Reserve System with deposits exceeding $1 billion
in respect of eurodollar currency funding liabilities.
"Event of Default": any of the events specified in
Section 9.1, provided that any requirement for the giving of no-
tice, the lapse of time, or any other condition has been satis-
fied.
"Excess Tax": as defined in Section 2.13(g).
"Expiration Date": the Business Day immediately pre-
ceding the Maturity Date.
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the
next higher 1/100 of 1%), equal to the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if the
17
day for which such rate is to be determined is not a Business
Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such
rate is not so published for any day which is a Business Day, the
Federal Funds Rate for such day shall be the average of the three
rates quoted by federal funds brokers to BNY on such day on such
transactions received by BNY as determined by BNY and reported to
the Administrative Agent.
"Financial Officer": the chief financial officer, the
treasurer or the assistant treasurer of the Parent or such other
officer thereof as shall be reasonably satisfactory to the
Administrative Agent.
"Financial Statements": as defined in Section 4.15.
"Fixed Rate Loan": a Eurodollar Advance, a Core Cur-
rency Euro Advance, a Swing Line Negotiated Rate Advance, a Ne-
gotiated Rate Loan, an Individual Currency Loan or a Bid Loan.
"Foreign Pension Plan": any plan, fund (including any
superannuation fund) or other similar program established or
maintained outside of the United States by the Parent or any one
or more of its Subsidiaries primarily for the benefit of
employees of the Parent or such Subsidiaries residing outside of
the United States, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income
in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA
or the Code.
"French Borrower": one or more of the following:
Tiffany, Tiffany International or Societe Francaise Pour Le
Developpement De La Porcelaine D'Art (S.A.R.L.), a corporation
organized under the laws of France and whose principal office is
located in France.
"French Francs": freely transferable lawful money of
France.
"Funded Current Liability Percentage": as defined in
Section 401(a)(29) of the Code.
"GAAP": generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and in the statements and pronouncements of the Fi-
nancial Accounting Standards Board or in such other statement by
such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the
circumstances as of the date of determination. If at any time
18
after the Effective Date any change in GAAP would affect the
computation of any financial ratio or requirement set forth in
any Loan Document, and either the Required Lenders, the Parent or
the appropriate Borrowers shall so request, the Administrative
Agent, the Lenders, the Parent and such Borrowers shall negotiate
in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, (i) such ratio or requirement
shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Parent and such Borrowers shall
provide to the Administrative Agent and the Lenders financial
statements and other documents required under the Loan Documents
or as reasonably requested thereunder setting forth a
reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP.
"German Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Germany and which shall become a Borrower
pursuant to Section 2.23 hereof.
"German Marks": freely transferable lawful money of
Germany.
"Governmental Authority": any foreign, federal, state,
municipal or other government, or any department, commission,
board, bureau, agency, public authority, instrumentality or other
political subdivision thereof, any central bank, or any court or
arbitrator.
"Guaranty": as defined in Section 5.2.
"Hong Kong Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany & Co. of New York
Limited, a corporation organized under the laws of Hong Kong and
whose principal office is located in Hong Kong.
"Hong Kong Dollars": freely transferable lawful money
of Hong Kong.
"Indebtedness": as to any Person, at a particular
time, all items of such Person which constitute, without duplica-
tion, (a) indebtedness for borrowed money or the deferred pur-
chase price of Property (other than trade payables and accrued
expenses incurred in the ordinary course of business), (b)
indebtedness evidenced by notes, bonds, debentures or similar
instruments, (c) obligations with respect to any conditional sale
or other title retention agreement, (d) indebtedness arising
under acceptance facilities and the amount available to be drawn
under all letters of credit issued for the account of such Person
and, without duplication, all drafts drawn thereunder to the
19
extent such Person shall not have reimbursed the issuer in
respect of the issuer's payment of such drafts, (e) liabilities
secured by any Lien on any Property owned by such Person even
though such Person shall not have assumed or otherwise become
liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's or other like
non-consensual Liens arising in the ordinary course of busi-
ness), (f) that portion of any obligation of such Person, as
lessee, which in accordance with GAAP is required to be
capitalized on the balance sheet of such Person, and (g) Con-
tingent Obligations.
"Indemnified Person": as defined in Section 11.10.
"Indemnified Tax": as to any Person, any Tax, except
(i) a Tax on the Income imposed on such Person and (ii) any
interest, fees or penalties for late payment imposed on such
Person, in each case under clauses (i) and (ii) to the extent not
attributable to the failure of the Parent or any of its
Subsidiaries to obtain any necessary approvals or consents of, or
file or cause to be filed any reports, applications, documents,
instruments or information required to be filed pursuant to any
applicable law, rule, regulation or request of, any Governmental
Authority.
"Indemnified Tax Person": the Administrative Agent,
the Swing Line Lender, the Issuing Bank, or any Lender.
"Individual Currency Commitment": with respect to each
Lender and any Non-Core Currency, the amount set forth opposite
such Lender's name in Exhibit A-2 directly below the column en-
titled "Individual Currency Commitment" in respect of such Non-
Core Currency (determined on the basis of the Dollar Equivalent
for such Non-Core Currency), as the same may be (x) reduced from
time to time pursuant to Section 2.9 or (y) adjusted from time to
time as a result of assignments to or from such Lender pursuant
to Section 11.7, provided, however, that the aggregate amount of
all of the Individual Currency Commitments of each Lender
(determined on the basis of the Dollar Equivalent for each
applicable Non-Core Currency) shall not exceed the amount of such
Lender's Commitment.
"Individual Currency Interest Period": with respect to
any Individual Currency Loan requested by any Non-Core Currency
Borrower, the period commencing on the Borrowing Date with re-
spect to such Individual Currency Loan and ending one, two or
three months thereafter, as selected by such Non-Core Currency
Borrower in its irrevocable Notice of Borrowing, provided, how-
ever, that (i) if any Individual Currency Interest Period would
otherwise end on a day which is not a Business Day, such
Individual Currency Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would
20
be to carry such Individual Currency Interest Period into another
calendar month, in which event such Individual Currency Interest
Period shall end on the immediately preceding Business Day, (ii)
any Individual Currency Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the
end of such Individual Currency Interest Period) shall end on the
last Business Day of a calendar month, and (iii) no Borrower
shall select an Individual Currency Interest Period which shall
end after the Maturity Date.
"Individual Currency Loan" and "Individual Currency
Loans": as defined in Section 2.1(e).
"Individual Currency Rate": with respect to each day
during each Interest Period applicable to any Individual Currency
Loan, a rate of interest per annum determined by dividing (and
then rounding to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) (i) if such Individual Currency Loan is
designated in Australian Dollars, Canadian Dollars, Hong Kong
Dollars, Italian Lira, Singaporean Dollars or Swiss Francs,
(A) with respect to Australian Dollars, the
average bid rate for bank bills of exchange that
appears on page BBSY on the Reuters Screen (Sydney) (or
any successor page) for a term equivalent to such
Interest Period, determined as of approximately 10:15
A.M. (Sydney time) on the first day of such Interest
Period,
(B) with respect to Canadian Dollars, the rate
per annum that appears on page CDOR on the Reuters
Screen (Toronto) (or any successor page) for deposits
of Canadian Dollars with a maturity comparable to such
Interest Period, determined as of approximately 11:00
A.M. (Toronto time) on the date which is two Business
Days prior to the commencement of such Interest Period,
(C) with respect to Italian Lira, the rate per
annum that appears on page RIBO (London) on the Reuters
Screen (or any successor page) for deposits of Italian
Lira with a maturity comparable to such Interest
Period, determined as of approximately 11:00 A.M.
(London time) on the date which is two Business Days
prior to the commencement of such Interest Period,
(D) with respect to Swiss Francs, the rate per
annum that appears on page 3740 or 3750 of the Dow
Jones Telerate Screen (or any successor page) for
deposits of Swiss Francs with a maturity comparable to
21
such Interest Period, determined as of approximately
11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such
Interest Period,
(E) with respect to Hong Kong Dollars, the rate
per annum that appears on page FWEN on the Reuters
Screen (Hong Kong) (or any successor page) for deposits
of Hong Kong Dollars with a maturity comparable to such
Interest Period, determined as of approximately 11:00
A.M. (Hong Kong time) on the date which is two Business
Days prior to the commencement of such Interest Period,
(F) with respect to Singaporean Dollars, the rate
per annum that appears on page FWEO of the Reuters
Screen (Singapore) (or any successor page) for deposits
of Singaporean Dollars with a maturity comparable to
such Interest Period, determined as of approximately
11:00 A.M. (Singapore time), on the date which is two
Business Days prior to the commencement of such
Interest Period, or
(G) if such rate does not appear on such
applicable page of the Dow Jones Telerate Screen or
Reuters Screen (or any successor page), the rate per
annum equal to the offered quotation by first class
banks in the London, Australian, Canadian, Hong Kong or
Singapore, as the case may be, interbank market to the
applicable Lender for such Non-Core Currency deposits
of amounts in immediately available funds comparable to
the principal amount of such Individual Currency Loan
with a maturity comparable to such Interest Period de-
termined as of approximately 11:00 A.M. (London,
Sydney, Toronto, Hong Kong or Singapore, as the case
may be, time) on the date which is two Business Days
prior to the commencement of such Interest Period or,
in the case of Individual Currency Loans designated in
Australian Dollars, on the first day of such Interest
Period,
(ii) if such Individual Currency Loan is designated in any other
Non-Core Currency, a rate per annum equal to the offered quo-
tation by first class banks in the applicable interbank market to
the applicable Lender for deposits of such Non-Core Currency in
amounts in immediately available funds comparable to the prin-
cipal amount of such Individual Currency Loan with a maturity
comparable to such Interest Period as determined by such Lender
on the date which is two Business Days prior to the commencement
of such Interest Period, adjusted for additional costs and local
market conditions as determined by such Lender, by
(b) a number equal to 1.00 minus the aggregate of
22
the stated maximum rates in effect on such day (without
duplication) of all reserve requirements (including marginal,
emergency, supplemental and special reserves) and similar
charges, expressed as a decimal, established by any Governmental
Authority, including those established by the Board of Governors
of the Federal Reserve System and any other banking authority to
which BNY and other major United States money center banks are
subject in respect of eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of the Board of
Governors of the Federal Reserve System) maintained by a member
of the Federal Reserve System with deposits exceeding $1 billion
in respect of eurodollar currency funding liabilities, to the
extent Applicable;
provided, in the event that the applicable Lender has made any
determination pursuant to Section 2.14(a)(iv) in respect of such
Individual Currency Loan, the Individual Currency Rate determined
pursuant to clause (a) of this definition shall instead be the
rate based on the all-in cost of funds of the applicable Lender
to fund such Individual Currency Loan with a maturity comparable
to such Interest Period.
"Intellectual Property": all United States registered
trademarks, service marks, patents, and trade names.
"Intercompany Acquisition": an Acquisition by the
Parent from any of its Subsidiaries or an Acquisition by any
Subsidiary of the Parent from any other Subsidiary of the Parent.
"Intercompany Debt": (i) Indebtedness of the Parent to
one or more of the Subsidiaries of the Parent and (ii) demand
Indebtedness of one or more of the Subsidiaries of the Parent to
the Parent or any one or more of the other Subsidiaries of the
Parent.
"Intercompany Disposition": a Disposition by the Parent
or any of its Subsidiaries to the Parent or any of its other
Subsidiaries, provided that such Disposition does not materially
and adversely affect the interests of the Lenders under the Loan
Documents.
"Intercompany Lien": A Lien granted by the Parent or
any of its Subsidiaries to the Parent or any of its other
Subsidiaries, provided that such Lien does not materially and
adversely affect the interests of the Lenders under the Loan
Documents.
"Interest Coverage Ratio": as of any date, the ratio
of (a) EBIT in respect of the period comprised of the four con-
secutive fiscal quarters ended immediately prior to such date in
respect of which financial statements have been delivered
pursuant to Sections 7.7(a), 7.7(c) or 7.7(d) to (b) Interest
23
Expense for such period.
"Interest Expense": for any period, the interest
expense of the Parent and its Subsidiaries on a Consolidated
basis in respect of such period.
"Interest Period": a Euro Interest Period, a Swing Line
Interest Period, a Negotiated Rate Interest Period, an Individual
Currency Interest Period or a Bid Interest Period, as the case
may be.
"Interest Rate Protection Arrangement": any interest
rate swap, cap or collar arrangement or any other derivative
product, in each case designed to reduce exposure to interest
rate fluctuations.
"Investments": as defined in Section 8.7.
"Invitation to Bid": an invitation to make Bids in the
form of Exhibit G.
"Issuing Bank": BNY.
"Italian Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany-Faraone S.P.A., a
corporation organized under the laws of Italy and whose principal
office is located in Italy.
"Italian Lira": freely transferable lawful money of
Italy.
"Japanese Borrower": one or more of the following:
Tiffany, Tiffany International, Tiffany Japan or a wholly-owned
Subsidiary of the Parent which is organized under the laws of,
and has its principal office in, Japan and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Japanese Yen": freely transferable lawful money of
Japan.
"Judgment Currency": as defined in Section 11.14.
"Judgment Currency Conversion Date": as defined in
Section 11.14.
"Korean Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Korea and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Korean Won": freely transferable lawful money of
24
Korea.
"Lender": each financial institution listed on
Exhibit A-1, as well as any Person which becomes a "Lender"
hereunder pursuant to Sections 11.7 or 11.1; it being understood
and agreed, however, that for purposes of making certain
Alternate Currency Loans and issuing or participating in certain
Letters of Credit under this Agreement, certain of the Lenders
have specifically designated on Exhibit R certain of their
branches, subsidiaries or affiliates that will be responsible for
making such Alternate Currency Loans and issuing or participating
in such Letters of Credit, or may make such a designation in an
Assignment and Acceptance Agreement entered into by any such
Lender.
"Letter of Credit" and "Letters of Credit": as defined
in Section 2.19.
"Letter of Credit Applicants": collectively, Tiffany
and Tiffany International; each a "Letter of Credit Applicant".
"Letter of Credit Commissions": as defined in Section
3.2.
"Letter of Credit Commitment": (i) the commitment of
the Issuing Bank to issue Letters of Credit, provided that the
Letter of Credit Exposure shall not exceed $25,000,000 (deter-
mined on the basis of the Dollar Equivalent for each outstanding
Letter of Credit designated in an Alternate Currency), and (ii)
the commitment of the Lenders in respect of the Letter of Credit
Exposure as set forth in Section 2.20.
"Letter of Credit Exposure": at any date, the sum,
without duplication, of (i) the aggregate undrawn face amount
(determined on the basis of the Dollar Equivalent for each
outstanding Letter of Credit designated in an Alternate Currency)
of the outstanding Letters of Credit at such date and (ii) the
aggregate unpaid reimbursement obligations in respect of the
Letters of Credit at such date (after giving effect to any Loans
made on such date to pay any such reimbursement obligations and
determined on the basis of the Dollar Equivalent for each such
reimbursement obligation in respect of an outstanding Letter of
Credit designated in an Alternate Currency).
"Letter of Credit Request": a request in the form of
Exhibit L.
"Leverage Ratio": as of any date, the ratio of (a)
Total Debt on such date, to (b) Consolidated Capitalization as of
such date.
"Lien": any mortgage, pledge, assignment, lien,
25
charge, encumbrance or security interest of any kind, or the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement.
"Loan": each Revolving Loan, each Individual Currency
Loan, each Negotiated Rate Loan, each Bid Loan and each Swing
Line Loan.
"Loan Documents": this Agreement and the Guaranty.
"Malaysian Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Malaysia and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Malaysian Ringgit": freely transferable lawful money
of Malaysia.
"Mandatory Borrowing": as defined in Section 2.1(d).
"Margin Stock": any "margin stock", as said term is de-
fined in Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from
time to time.
"Material Adverse": with respect to any change or
effect, a material adverse change in, or effect on, as the case
may be, (i) the financial condition, operations, business, pros-
pects or Property of the Parent and its Subsidiaries taken as a
whole, (ii) the ability of the Parent or any Borrower to perform
its obligations under any Loan Document, or (iii) the ability of
the Administrative Agent, the Issuing Bank, the Swing Line Lender
or any Lender to enforce any Loan Document.
"Maturity Date": June 30, 2000, or such earlier date on
which the Loans shall become due and payable, whether by ac-
celeration or otherwise.
"Maximum Offer": as defined in Section 2.11(b).
"Maximum Request": as defined in Section 2.11(a).
"Mexican Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Mexico and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Mexican Pesos": freely transferable lawful money of
Mexico.
26
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Pension Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Negotiated Rate": as defined in Section 2.12.
"Negotiated Rate Confirmation": as defined in Section
2.12.
"Negotiated Rate Confirmation Request": a request by a
Borrower and the Parent, in the form of Exhibit K, for con-
firmation by a Lender of such Lender's agreement to make a
Negotiated Rate Loan to such Borrower pursuant to Section 2.12.
"Negotiated Rate Interest Period": as to any Negotiated
Rate Loan, the period commencing on the date of such Negotiated
Rate Loan, and ending on the applicable date specified in the
Negotiated Rate Confirmation for such Negotiated Rate Loan, which
shall not be earlier than 7 days after the date of such
Negotiated Rate Loan or later than 180 days after the date of
such Negotiated Rate Loan; provided, however, that (i) if any
Negotiated Rate Interest Period would end on a day other than a
Business Day, such Negotiated Rate Interest Period shall be ex-
tended to the next succeeding Business Day, unless such next
succeeding Business Day would be a date on or after the Maturity
Date in which case such Negotiated Rate Interest Period shall end
on the next preceding Business Day and (ii) no Borrower shall
select a Negotiated Rate Interest Period which shall end after
the Maturity Date.
"Negotiated Rate Loan": each loan from a Lender to a
Borrower pursuant to Section 2.12.
"New Taiwan Dollars": freely transferable lawful money
of Taiwan.
"Non-Core Currencies": Australian Dollars, Canadian
Dollars, Hong Kong Dollars, Italian Lira, Korean Won, Malaysian
Ringgit, Mexican Pesos, New Taiwan Dollars, Philippine Pesos,
Singaporean Dollars, Swiss Francs and Thai Baht; each a "Non-Core
Currency".
"Non-Core Currency Borrowers": with respect to Indi-
vidual Currency Loans, the Australian Borrower, the Canadian
Borrower, the Hong Kong Borrower, the Italian Borrower, the
Korean Borrower, the Malaysian Borrower, the Mexican Borrower,
the Philippine Borrower, the Singaporean Borrower, the Swiss
Borrower, the Taiwanese Borrower and the Thai Borrower; each a
"Non-Core Currency Borrower".
"Non-Issuance Event": as defined in Section 2.19(a).
27
"Non-Swing Loan Event": as defined in Section 2.1(c).
"Notice of Borrowing": a request for Loans in the form
of Exhibit C signed by the Parent and the applicable Borrower.
"Notice of Conversion": a notice substantially in the
form of Exhibit E.
"Obligation Currency": as defined in Section 11.14.
"Other Hedging Arrangement": any foreign exchange
contract, currency swap arrangement, commodity arrangement or any
other similar arrangement, in each case designed to protect
against fluctuations of currency values.
"PBGC": the Pension Benefit Guaranty Corporation estab-
lished pursuant to Subtitle A of Title IV of ERISA, or any
Governmental Authority succeeding to the functions thereof.
"Pension Plan": at any time, any Employee Benefit Plan
(including a Multiemployer Plan) subject to Section 302 of ERISA
or Section 412 of the Code, the funding requirements of which
are, or at any time within the six years immediately preceding
the time in question, were in whole or in part, the responsi-
bility of the Parent, any of its Subsidiaries or an ERISA Affili-
ate.
"Person": any individual, firm, partnership, joint
venture, corporation, association, business enterprise, limited
liability company, joint stock company, unincorporated
association, trust, Governmental Authority or any other entity,
whether acting in an individual capacity, and for the purpose of
the definition of "ERISA Affiliate", a trade or business.
"Philippine Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, the Philippines and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Philippine Pesos": freely transferable lawful money of
the Philippines.
"Portion": as defined in Section 2.11(b).
"Pricing Level": any of Pricing Level I, Pricing Level
II, Pricing Level III, Pricing Level IV, or Pricing Level V.
"Pricing Level I": any time when the senior unsecured
long term debt Rating of the Parent by (x) S&P is A- or higher or
(y) Moody's is A3 or higher.
28
"Pricing Level II": any time when (i) the senior
unsecured long term debt Rating of the Parent by (x) S&P is BBB+
or higher or (y) Moody's is Baa1 or higher and (ii) Pricing Level
I does not apply.
"Pricing Level III": any time when (i) the senior
unsecured long term debt Rating of the Parent by (x) S&P is BBB
or higher or (y) Moody's is Baa2 or higher and (ii) neither
Pricing Level I nor Pricing Level II applies.
"Pricing Level IV": any time when (i) the senior
unsecured long term debt Rating of the Parent by (x) S&P is BBB-
or higher or (y) Moody's is Baa3 or higher and (ii) none of
Pricing Level I, Pricing Level II or Pricing Level III applies.
"Pricing Level V": any time when (i) the senior un-
secured long term debt Rating of the Parent by (x) S&P is BB+ or
lower or (y) Moody's is Ba1 or lower and (ii) none of Pricing
Level I, Pricing Level II, Pricing Level III or Pricing Level IV
applies.
"Prohibited Transaction": with respect to any Pension
Plan, (a) any event set forth in Sections 4043(b) (other than a
Reportable Event as to which the 30 day notice requirement is
waived by the PBGC under applicable regulations), 4062(e) or
4063(a) of ERISA or the regulations thereunder, (b) an event
requiring the Parent, any of its Subsidiaries or any ERISA Af-
filiate to provide security to a Pension Plan under Section
401(a)(29) of the Code, or (c) failure to make any payment
required by Section 412(m) of the Code.
"Property": in respect of any Person, all types of
real, personal, tangible, intangible or mixed property and all
types of tangible or intangible property owned or leased by such
Person.
"Proportionate Share": as to any Subsidiary Borrower
(a) if such cost, expense or other amount is directly
attributable to the Loans made to such Subsidiary Borrower or any
action taken or omitted to be taken by such Subsidiary Borrower,
100% of such amount and (b) if such cost, expense or other amount
is not directly attributable to one or more specific Borrowers,
such amount multiplied by (i) if Loans are outstanding, the
percentage equivalent of a fraction the numerator of which is the
principal amount of Loans outstanding to such Subsidiary Borrower
and the denominator of which is the aggregate amount of Loans
outstanding to all Borrowers and (ii) if no Loans are
outstanding, the percentage equivalent of a fraction the
numerator of which is one and the denominator of which is the
number of Borrowers.
"Proposed Lender": as defined in Section 11.1(b).
29
"Quarterly Payment Date": each January 31, April 30,
July 31 and October 31 of each year.
"Rating": the actual, or if no actual then the implied,
senior unsecured long term debt rating of the Parent, in either
case as assigned by S&P or Moody's, as the case may be.
"Reference Lender": BNY.
"Regulation D": Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof establishing reserve
requirements.
"Reportable Event": with respect to any Pension Plan,
(a) any event set forth in Sections 4043(c) (other than a Re-
portable Event as to which the 30 day notice requirement is
waived by the PBGC under applicable regulations), 4062(e) or
4063(a) of ERISA or the regulations thereunder, (b) an event
requiring the Parent, any of its Subsidiaries or any ERISA Af-
filiate to provide security to a Pension Plan under Section
401(a)(29) of the Code, or (c) failure to make any payment
required by Section 412(m) of the Code.
"Required Lenders": (i) at any time when no Loans are
outstanding, Lenders having Commitments or, if no Commitments
then exist, Lenders having Commitments on the last day on which
Commitments did exist, equal to at least 60% of the Aggregate
Commitments, and (ii) at any time when Loans are outstanding (x)
if the Commitments then exist, Lenders having Commitments equal
to at least 60% of the Aggregate Commitments, and (y) if the
Commitments have been terminated or otherwise no longer exist,
Lenders having Credit Exposures equal to at least 60% of the
Aggregate Credit Exposure.
"Required Payment": as defined in Section 2.13(a).
"Responsible Officer": the president, the chief
financial officer, the treasurer or the assistant treasurer of
the Parent, Tiffany or Tiffany International.
"Restricted Payment": with respect to any Person, any
of the following, whether direct or indirect: (a) the declaration
or payment by such Person of any dividend or distribution on any
class of Stock of such Person, other than a dividend payable
solely in shares of that class of Stock to the holders of such
class, (b) the declaration or payment by such Person of any
distribution on any other type or class of equity interest or
equity investment in such Person, and (c) any redemption, retire-
ment, purchase or acquisition of, or sinking fund or other
similar payment in respect of, any class of Stock of, or other
type or class of equity interest or equity investment in, such
30
Person.
"Revolving Loan" and "Revolving Loans": as defined in
Section 2.1(a).
"S&P": Standard & Poor's Ratings Group.
"SEC": the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Singaporean Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany & Co. Pte. Ltd., a cor-
poration organized under the laws of Singapore and whose princi-
pal office is located in Singapore.
"Singaporean Dollars": freely transferable lawful money
of Singapore.
"SL/LC Credit Exposure": with respect to any Lender at
any time, (i) the sum of (A) the outstanding principal balance of
all Swing Line Loans (determined on the basis of the Dollar
Equivalent for each Alternate Currency Swing Line Loan), plus (B)
the Letter of Credit Exposure, multiplied by (ii) the
Availability Percentage of such Lender.
"Special Counsel": Emmet, Marvin & Martin, LLP, special
counsel to the Administrative Agent.
"Sterling Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany & Co., a corporation
organized under the laws of the United Kingdom and whose
principal office is located in the United Kingdom.
"Sterling Pounds": freely transferable lawful money of
the United Kingdom.
"Stock": any and all shares, rights, interests, par-
ticipations, warrants, options, rights of conversion or other
equivalents (however designated) of corporate stock.
"Subsidiary": with respect to any Person at any time
and from time to time, any corporation, association, partnership,
limited liability company, joint venture or other business entity
of which such Person and/or any Subsidiary of such Person,
directly or indirectly at such time, either (a) in respect of a
corporation, owns or controls more than 50% of the outstanding
Stock having ordinary voting power to elect a majority of the
board of directors or similar managing body, irrespective of
whether a class or classes shall or might have voting power by
reason of the happening of any contingency, or (b) in respect of
an association, partnership, limited liability company, joint
venture or other business entity, is entitled to share in more
31
than 50% of the profits and losses, however determined.
"Subsidiary Borrowers": collectively, the Domestic
Borrowers (other than Tiffany and Tiffany International), the
Australian Borrower, the Canadian Borrower, the French Borrower,
the German Borrower, the Hong Kong Borrower, the Italian
Borrower, the Japanese Borrower, the Korean Borrower, the
Malaysian Borrower, the Mexican Borrower, the Philippine Bor-
rower, the Singaporean Borrower, the Sterling Borrower, the Swiss
Borrower, the Taiwanese Borrower and the Thai Borrower which are
signatories hereto on the Effective Date, and each other wholly-
owned Subsidiary of the Parent which becomes a party to this
Agreement by the execution of a Borrower Addendum pursuant to
Section 2.23; each a "Subsidiary Borrower".
"Swing Line Borrowers": with respect to Swing Line
Loans, the Domestic Borrowers, the French Borrower, the German
Borrower, the Japanese Borrower and the Sterling Borrower; each a
"Swing Line Borrower".
"Swing Line Commitment": an amount equal to
$15,000,000, as the same may be reduced from time to time pur-
suant to Section 2.9.
"Swing Line Commitment Period": the period from the
Effective Date to, but excluding, the Swing Line Termination
Date.
"Swing Line Interest Period": (i) as to any Swing Line
Negotiated Rate Advance, the period commencing on the date of
such Swing Line Negotiated Rate Advance and ending on the date
agreed to between the Parent, the applicable Swing Line Borrower
and the Swing Line Lender with respect to such Swing Line
Negotiated Rate Advance, and (ii) as to any Swing Line Loan made
as an ABR Advance, the period commencing on the date of such ABR
Advance and ending on the date set forth by the Parent and the
applicable Swing Line Borrower in the Notice of Borrowing with
respect to such ABR Advance; provided, however, that the last day
of any Swing Line Interest Period shall not be earlier than one
day after the date of such Swing Line Negotiated Rate Advance or
ABR Advance, as the case may be, or later than 30 days after the
date of such Swing Line Negotiated Rate Advance or ABR Advance,
as the case may be, and in no event later than 30 days prior to
the Expiration Date; and provided further, however, that if any
Swing Line Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day.
"Swing Line Lender": BNY.
"Swing Line Loan" and "Swing Line Loans": as defined in
Section 2.1(c).
32
"Swing Line Negotiated Rate": with respect to any Swing
Line Interest Period applicable to any Swing Line Negotiated Rate
Advance, the rate of interest per annum agreed to by the Parent,
the applicable Swing Line Borrower, and the Swing Line Lender
with respect thereto in accordance with Section 2.3(b).
"Swing Line Negotiated Rate Advances": collectively,
the Swing Line Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a
rate of interest based on a Swing Line Negotiated Rate; each a
"Swing Line Negotiated Rate Advance".
"Swing Line Termination Date": the date which is 30
days prior to the Expiration Date.
"Swiss Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany & Co. Watch Factory
S.A., a corporation organized under the laws of Switzerland and
whose principal office is located in Switzerland.
"Swiss Francs": freely transferable lawful money of
Switzerland.
"Taiwanese Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Taiwan and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Tax": any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by a Governmental Authority, on whomsoever and wherever
imposed, levied, collected, withheld or assessed.
"Tax on the Income": as to any Person, a Tax imposed by
one of the following jurisdictions or by any political
subdivision or taxing authority thereof: (i) the United States,
(ii) the jurisdiction in which such Person is organized,
(iii) the jurisdiction in which such Person's principal office is
located, or (iv) in the case of each Lender or Swingline Lender,
any jurisdiction in which such Person is deemed to be doing
business; which Tax is an income tax or franchise tax imposed on
all or part of the net income or net profits of such Person or
which Tax represents interest, fees, or penalties for late
payment of such an income tax or franchise tax.
"Termination Event": with respect to any Pension Plan,
(a) a Reportable Event, (b) the termination of a Pension Plan
under Section 4041(c) of ERISA, or the filing of a notice of
intent to terminate a Pension Plan under Section 4041(c) of
ERISA, or the treatment of a Pension Plan amendment as a termi-
nation under Section 4041(e) of ERISA, (c) the institution of
33
proceedings by the PBGC to terminate a Pension Plan under Section
4042 of ERISA, or (d) the appointment of a trustee to administer
any Pension Plan under Section 4042 of ERISA.
"Thai Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary of
the Parent which is organized under the laws of, and has its
principal office in, Thailand and which shall become a Borrower
pursuant to Section 2.23 hereof.
"Thai Baht": freely transferable lawful money of
Thailand.
"Tiffany Japan": Tiffany & Co. Japan Inc., a Delaware
corporation.
"Total Debt": as of any date, all Indebtedness of the
Parent and its Subsidiaries on a Consolidated basis on such date.
"Unfunded Pension Liabilities": with respect to any
Pension Plan (other than a Multiemployer Plan), as of the last
day of the fiscal year of such Pension Plan preceding the time in
question, the amount determined by taking the accumulated benefit
obligation, as disclosed in accordance with Statement of
Accounting Standards No. 87, "Employers' Accounting for
Pensions", over the fair market value of Pension Plan assets.
"United States": the United States of America (in-
cluding the States thereof and the District of Columbia).
"Upstream Dividends": as defined in Section 8.9.
"Unrecognized Retiree Welfare Liability": with respect
to any Employee Benefit Plan that provides postretirement ben-
efits other than pension benefits, the amount of the transition
obligation, as determined in accordance with Statement of
Financial Accounting Standards No. 106, "Employers' Accounting
for Postretirement Benefits Other Than Pensions," as of the most
recent valuation date, that has not been recognized as an expense
in the income statement of the Parent and its Consolidated
Subsidiaries, provided that (i) prior to the date such Statement
is applicable to the Parent, such amount shall be based on an
estimate made in good faith of the transition obligation, and
(ii) for purposes of determining the aggregate amount of the
Unrecognized Retiree Welfare Liability, Plans maintained by a
Consolidated Subsidiary of the Parent that is not otherwise an
ERISA Affiliate shall be included.
B. Principles of Construction
(a) All capitalized terms defined in this Agreement
shall have the meanings given such capitalized terms herein when
34
used in the other Loan Documents or any certificate, opinion or
other document made or delivered pursuant hereto or thereto,
unless otherwise expressly provided therein.
(b) As used in the Loan Documents and in any cer-
tificate, opinion or other document made or delivered pursuant
thereto, accounting terms not defined in Section 1.1, and ac-
counting terms partly defined in Section 1.1 to the extent not
defined, shall have the respective meanings given to them under
GAAP. Unless otherwise expressly provided herein, the word
"fiscal" when used herein shall refer to the relevant fiscal
period of the Parent.
(c) The words "hereof", "herein", "hereto" and "here-
under" and similar words when used in each Loan Document shall
refer to such Loan Document as a whole and not to any particular
provision of such Loan Document, and Section, schedule and
exhibit references contained therein shall refer to Sections
thereof or schedules or exhibits thereto unless otherwise ex-
pressly provided therein.
(d) All references herein to a time of day shall mean
the then applicable time in New York, New York, unless otherwise
expressly provided herein.
(e) Section headings have been inserted herein and in
the other Loan Documents for convenience only and shall not be
construed to be a part hereof or thereof. Unless the context
otherwise requires, words in the singular number include the
plural, and words in the plural include the singular.
(f) Whenever in any Loan Document or in any cer-
tificate or other document made or delivered pursuant thereto,
the terms thereof require that a Person sign or execute the same
or refer to the same as having been so signed or executed, such
terms shall mean that the same shall be, or was, duly signed or
executed by (i) in respect of any Person that is a corporation,
any duly authorized officer thereof, and (ii) in respect of any
other Person (other than an individual), any analogous
counterpart thereof.
(g) The words "include" and "including", when used in
each Loan Document, shall mean that the same shall be included
"without limitation", unless otherwise specifically provided.
II. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT
A. Loans
(a) Subject to the terms and conditions hereof, each
Lender severally agrees from time to time during the Commitment
35
Period to make revolving credit loans to one or more of the Core
Currency Borrowers in the respective Applicable Currencies (each
a "Revolving Loan" and, as the context may require, collectively
with all other Revolving Loans of such Lender and with the
Revolving Loans of all other Lenders, the "Revolving Loans"),
provided, however, that immediately after giving effect thereto,
(i) the Aggregate Credit Exposure shall not exceed the Aggregate
Commitments, and (ii) with respect to each Lender, (I) the ag-
gregate principal amount of all Revolving Loans then outstanding
from such Lender (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Revolving
Loan), plus (II) the aggregate principal amount of all Individual
Currency Loans then outstanding from such Lender (determined on
the basis of the Dollar Equivalent of each such Individual
Currency Loan), plus (III) the SL/LC Credit Exposure of such
Lender, shall not exceed such Lender's Commitment. During the
Commitment Period, the Core Currency Borrowers may borrow, prepay
in whole or in part and reborrow Revolving Loans under the Ag-
gregate Commitments, all in accordance with the terms and con-
ditions of this Agreement.
(b) Subject to the terms and conditions hereof, Re-
volving Loans, (i) if to be made in Dollars (each a "Dollar Re-
volving Loan" and, collectively, the "Dollar Revolving Loans"),
shall be made to one or more Domestic Borrowers and shall, at the
option of such Domestic Borrowers, be either ABR Advances or
Eurodollar Advances, (ii) if to be made in French Francs, shall
be made to the French Borrower, (iii) if to be made in German
Marks, shall be made to the German Borrower, (iv) if to be made
in Japanese Yen, shall be made to the Japanese Borrower, and (v)
if to be made in Sterling Pounds, shall be made to the Sterling
Borrower. The Revolving Loans, together with all accrued and
unpaid interest thereon, shall mature and be due and payable in
the Applicable Currency on the Maturity Date.
(c) Subject to and upon the terms and conditions set
forth herein, the Swing Line Lender in its individual capacity
agrees to make at any time and from time to time during the Swing
Line Commitment Period, a loan or loans (each a "Swing Line Loan"
and, collectively, the "Swing Line Loans") to one or more of the
Swing Line Borrowers, which Swing Line Loans (i) shall, at the
option of the applicable Swing Line Borrower, be made and
maintained as Dollar Swing Line Loans or Alternate Currency Swing
Line Loans in an Available Alternate Currency, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii)
shall not, immediately after giving effect thereto, result in the
Aggregate Credit Exposure exceeding the Aggregate Commitments,
and (iv) shall not, immediately after giving effect thereto,
result in the aggregate outstanding principal amount of all Swing
Line Loans (determined on the basis of the Dollar Equivalent for
each outstanding Alternate Currency Swing Line Loan) exceeding
the Swing Line Commitment. The Swing Line Lender shall not be
36
obligated to make any Swing Line Loans at a time when any Lender
(other than the Swing Line Lender) shall be in default of its
obligations under this Agreement unless the Swing Line Lender has
entered into arrangements satisfactory to it and the Parent to
eliminate the Swing Line Lender's risk with respect to each de-
faulting Lender's participation in such Swing Line Loans. The
Swing Line Lender will not make a Swing Line Loan (i) if the
Administrative Agent or any Lender by notice to the Swing Line
Lender, the Parent and the affected Swing Line Borrower prior to
the time such Swing Line Loan is to be made, shall have
determined that any of the applicable conditions set forth in
Sections 5 and 6 have not been satisfied and such conditions
remain unsatisfied as of the requested time of making such Swing
Line Loan or (ii) to the extent that immediately after giving
effect thereto the Aggregate Credit Exposure would exceed the
Aggregate Commitments (each a "Non-Swing Loan Event"). Swing
Line Loans shall mature and be due and payable on the earlier of,
with respect to each Swing Line Negotiated Rate Advance and Swing
Line Loan maintained as an ABR Advance, (x) the last day of the
Swing Line Interest Period applicable thereto and (y) the
Maturity Date. Subject to the terms and conditions hereof,
Swing Line Loans, (i) if to be made in Dollars (each a "Dollar
Swing Line Loan" and, collectively, the "Dollar Swing Line
Loans"), shall be made to one or more Domestic Borrowers and
shall be ABR Advances, (ii) if to be made in French Francs, shall
be made to the French Borrower, (iii) if to be made in German
Marks, shall be made to the German Borrower, (iv) if to be made
in Japanese Yen, shall be made to the Japanese Borrower, and (v)
if to be made in Sterling Pounds, shall be made to the Sterling
Borrower.
(d) On any Business Day, the Swing Line Lender may, in
its sole discretion, give notice to the Lenders and the Parent
(on behalf of all Swing Line Borrowers) that its outstanding
Swing Line Loans shall be funded with a borrowing of Revolving
Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event
of Default under Sections 9.1(g) or (h)), in which case one or
more borrowings of Revolving Loans constituting ABR Advances (or
constituting one or more Eurodollar Advances specified by the
Parent in accordance with Section 2.3(a)) or Alternate Currency
Revolving Loans with a one month Euro Interest Period (or such
other Euro Interest Period(s) specified by the Parent in
accordance with Section 2.3(a)) in the Applicable Currency, as
the case may be (each such borrowing a "Mandatory Borrowing"),
shall be made on the fifth Business Day immediately succeeding
such notice by all Lenders pro rata based on each such Lender's
Availability Percentage immediately prior thereto but after
giving effect to any prepayment of Revolving Loans, Individual
Currency Loans, or Swing Line Loans, or any payment of
reimbursement obligations in respect of the Letters of Credit, to
be made simultaneously therewith, and the proceeds thereof shall
37
be applied directly to the Swing Line Lender to repay the Swing
Line Lender for such outstanding Swing Line Loans. Each Lender
hereby irrevocably agrees to make Revolving Loans in Dollars or
the Applicable Currency, as the case may be, pursuant to each
Mandatory Borrowing in respect of any Swing Line Loan in the
amount and in the manner specified in the preceding sentence and
on the date specified in writing by the Swing Line Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not
comply with the minimum amount for Loans otherwise required
hereunder, (ii) whether any conditions specified in Sections 5
and 6 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) the date of such Mandatory Borrowing,
(v) the aggregate principal amount of all Loans then outstanding
(determined on the basis of the Dollar Equivalent of each out-
standing Alternate Currency Loan), (vi) the Aggregate Credit
Exposure at such time and (vii) the amount of the Aggregate
Commitments at such time, provided that no Non-Swing Loan Event
shall have occurred and be continuing with respect to such Swing
Line Loan. In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (in-
cluding as a result of the commencement of any proceeding re-
ferred to in Sections 9.1(g) or (h)) then each Lender hereby
agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the Parent or the applicable Swing
Line Borrower on or after such date and prior to such purchase)
from the Swing Line Lender such assignments in each outstanding
Swing Line Loan as shall be necessary to cause the Lenders to
share in each such Swing Line Loan ratably based upon their re-
spective Availability Percentages at such time, provided that no
Non-Swing Loan Event shall have occurred and be continuing with
respect to such Swing Line Loan, and provided further that all
interest payable on each such Swing Line Loan shall be for the
account of the Swing Line Lender until the date as of which the
respective assignment therein is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the
relevant Lender from and after such date. Each Lender agrees
promptly to indemnify the Swing Line Lender for any costs or
expenses the Swing Line Lender may incur as a result of the
failure of such Lender to fulfill its obligations under this
Section 2.1(d).
(e) Subject to the terms and conditions hereof, each
Lender in its individual capacity agrees to make at any time and
from time to time during the Commitment Period a loan or loans
under one or more of its Individual Currency Commitments (each an
"Individual Currency Loan" and, as the context may require, col-
lectively with all other Individual Currency Loans of such Lender
and, as the context may require, with the Individual Currency
Loans of all other Lenders, the "Individual Currency Loans") to
one or more of the applicable Non-Core Currency Borrowers in the
respective Applicable Currencies, provided, however, that
38
immediately after giving effect thereto:
(i) the Aggregate Credit Exposure shall not exceed the
Aggregate Commitments,
(ii) the Aggregate Credit Exposure attributable to all
Loans and Letters of Credit designated in Non-Core Curren-
cies shall not exceed $60,000,000,
(iii) with respect to any Applicable Currency, (x)
the aggregate principal amount of the Individual Currency
Loans of such Lender designated in such Applicable Currency
shall not exceed such Lender's Individual Currency
Commitment for such Applicable Currency and (y) the sum of
the aggregate principal amount of the Individual Currency
Loans of all Lenders in such Applicable Currency and the
Letter of Credit Exposure attributable to all Letters of
Credit issued in such Applicable Currency (determined on the
basis of the Dollar Equivalent of each such Individual
Currency Loan and each such Letter of Credit) shall not
exceed $5,000,000, and
(iv) with respect to each Lender (x) the aggregate
principal amount of all Individual Currency Loans then
outstanding from such Lender (determined on the basis of the
Dollar Equivalent of each such Individual Currency Loan),
plus (y) the aggregate principal amount of all Revolving
Loans then outstanding from such Lender (determined on the
basis of the Dollar Equivalent for each outstanding Alter-
nate Currency Revolving Loan), plus (z) the SL/LC Credit
Exposure of such Lender, shall not exceed such Lender's
Commitment.
During the Commitment Period, the Non-Core Currency Borrowers may
borrow, prepay in whole or in part and reborrow Individual
Currency Loans under the Aggregate Individual Currency Commit-
ments, all in accordance with the terms and conditions of this
Agreement.
(f) Subject to the terms and conditions hereof,
Individual Currency Loans, (i) if to be made in Australian
Dollars, shall be made to the Australian Borrower, (ii) if to be
made in Canadian Dollars, shall be made to the Canadian Borrower,
(iii) if to be made in Hong Kong Dollars, shall be made to the
Hong Kong Borrower, (iv) if to be made in Italian Lira, shall be
made to the Italian Borrower, (v) if to be made in Korean Won,
shall be made to the Korean Borrower, (vi) if to be made in
Malaysian Ringgit, shall be made to the Malaysian Borrower, (vii)
if to be made in Mexican Pesos, shall be made to the Mexican
Borrower, (viii) if to be made in Philippine Pesos, shall be made
to the Philippine Borrower, (ix) if to be made in Singaporean
Dollars, shall be made to the Singaporean Borrower, (x) if to be
39
made in Swiss Francs, shall be made to the Swiss Borrower, (xi)
if to be made in New Taiwan Dollars, shall be made to the
Taiwanese Borrower, and (xii) if to be made in Thai Baht, shall
be made to the Thai Borrower. Each Individual Currency Loan
shall be due and payable on the earlier of (x) the last day of
the Individual Currency Interest Period applicable thereto and
(y) the Maturity Date.
B. Minimum Amount of Each Borrowing
(a) The aggregate principal amount of each borrowing
of Revolving Loans shall not (x) in the case of Revolving Loans
constituting ABR Advances, be less than $500,000 or such amount
and a whole multiple of $100,000 in excess thereof, and (y) in
the case of Eurodollar Advances and Core Currency Euro Advances,
be less than $500,000 or such amount and a whole multiple of
$100,000 in excess thereof (or an amount in the applicable
Alternate Currency having a Dollar Equivalent of approximately
$500,000 or such amount plus a whole multiple of approximately
$100,000 in excess thereof in the case of a borrowing of
Alternate Currency Revolving Loans), provided, in each case that
Mandatory Borrowings shall be made in the amounts required by
Section 2.1(d).
(b) The aggregate principal amount of each borrowing
of Swing Line Loans shall not be less than $100,000 or such
amount plus a multiple of $50,000 in excess thereof (or an amount
in the applicable Alternate Currency having a Dollar Equivalent
of approximately $100,000 or such amount plus a whole multiple of
approximately $50,000 in excess thereof in the case of a
borrowing of Alternate Currency Swing Line Loans).
(c) The aggregate principal amount of each borrowing
of Individual Currency Loans shall not be less than an amount in
the applicable Non-Core Alternate Currency having a Dollar
Equivalent of approximately $100,000 or such amount plus a whole
multiple of approximately $50,000 in excess thereof.
(d) At no time shall the aggregate outstanding number
(whether as a result of borrowings or conversions), of all (x)
Eurodollar Advances exceed 5, (y) all Core Currency Euro Advances
exceed 10 and (z) all Individual Currency Loans exceed 18.
(e) The aggregate number of all Bid Requests shall not
exceed 12 (or such other number as the Parent and the Adminis-
trative Agent shall agree from time to time) in any fiscal
quarter.
C. Notice of Borrowing
(a) Whenever a Borrower desires to borrow Loans
hereunder (excluding Swing Line Loans, Bid Loans, Negotiated Rate
40
Loans, Individual Currency Loans and Mandatory Borrowings), the
Parent and such Borrower shall give the Administrative Agent at
its office set forth in Section 11.2 (i) no later than 10:00 A.M.
on the date that an ABR Advance is to be made written notice (or
telephonic notice promptly confirmed in writing) of each ABR
Advance, (ii) no later than 10:00 A.M. at least two Business
Days' prior written notice (or telephonic notice promptly con-
firmed in writing) of each Eurodollar Advance and (iii) no later
than 11:00 A.M. at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of
each Alternate Currency Loan (other than an Individual Currency
Loan) to be made hereunder, provided that any such notice shall
be deemed to have been given on a certain day only if given be-
fore 10:00 A.M. on such day in the case of clauses (i) and (ii)
above and 11:00 A.M. on such day in the case of clause (iii)
above. Each such written notice or written confirmation of
telephonic notice (each a "Notice of Borrowing"), shall be
irrevocable and shall be given by the Parent and the applicable
Borrower in the form of Exhibit C, appropriately completed to
specify (A) the name of such Borrower, (B) the date of such
borrowing (which shall be a Business Day), (C) the Applicable
Currency for such Loans, (D) the aggregate principal amount of
the Loans to be made (stated in the Applicable Currency), (E) in
the case of Dollar Loans, whether the Loans being made are to be
initially maintained as ABR Advances or Eurodollar Advances and
(F) in the case of all Loans (other than ABR Advances), the
initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Lender notice of
such proposed borrowing, of such Lender's proportionate share
thereof and of the other matters required by the immediately
preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever a Swing Line Borrower desires to
borrow Swing Line Loans hereunder, the Parent and such Swing Line
Borrower shall give the Swing Line Lender a Notice of Borrowing
(or telephonic notice promptly confirmed by delivery of a Notice
of Borrowing) at its office set forth in Section 11.2 no later
than (x) 1:00 P.M. on the requested Borrowing Date in respect of
a Dollar Swing Line Loan, (y) 10:00 A.M. at least one Business
Day prior to the requested Borrowing Date in respect of an
Alternate Currency Swing Line Loan in Sterling Pounds and (z)
10:00 A.M. at least two Business Days prior to the requested
Borrowing Date in respect of any other Alternate Currency Swing
Line Loan, provided, that any such notice shall be deemed to have
been given on a certain day only if given before 1:00 P.M. on
such day in the case of clause (x) above or 10:00 A.M. on such
day in the case of clause (y) or (z) above. Each such notice
shall be irrevocable and specify in each case (A) the name of
such Swing Line Borrower, (B) the date of such incurrence (which
shall be a Business Day) (C) the Applicable Currency for such
Swing Line Loans, (D) the aggregate principal amount of such
Swing Line Loans (stated in the Applicable Currency) and (E) the
41
requested amount and the requested Swing Line Interest Period and
maturity date with respect to each Swing Line Negotiated Rate
Advance and Swing Line Loan made as an ABR Advance. Upon receipt
from the Parent and the applicable Swing Line Borrower of a
Notice of Borrowing which requests one or more Swing Line
Negotiated Rate Advances, the Swing Line Lender shall, following
discussion with the Parent regarding the proposed Swing Line
Negotiated Rate for such Swing Line Negotiated Rate Advance,
confirm in writing to the Parent the applicable Swing Line
Negotiated Rate (x) 12:00 Noon one Business Day prior to the
requested Borrowing Date in the case of a Swing Line Negotiated
Rate Advance in Sterling Pounds and (y) 12:00 Noon two Business
Days prior to the requested Borrowing Date in the case of a Swing
Line Negotiated Rate Advance in a Core Currency (other than
Dollars and Sterling Pounds).
(ii) Mandatory Borrowings shall be made upon the
notice specified in Section 2.1(d), with each Swing Line Borrower
irrevocably agreeing, by its borrowing of any Swing Line Loan, to
the making of the Mandatory Borrowings as set forth in Section
2.1(d).
(c) Whenever any Non-Core Currency Borrower desires to
borrow Individual Currency Loans hereunder, the Parent and such
Non-Core Currency Borrower shall give the applicable Lenders and
the Administrative Agent at their respective offices set forth in
11.2 a Notice of Borrowing (or telephonic notice promptly
confirmed by delivery of a Notice of Borrowing) no later than
11:00 A.M. at least three Business Days' prior to the requested
Borrowing Date in respect of such Individual Currency Loans,
provided that any such notice shall be deemed to have been given
on a certain day only if given before 11:00 A.M. on such day.
Upon its receipt of any such Notice of Borrowing, the
Administrative Agent shall promptly confirm in writing its
receipt of such Notice of Borrowing to each applicable Lender;
only upon receipt by such Lender of such written confirmation
from the Administrative Agent will such Notice of Borrowing
become effective. Each such notice of the Borrower shall be ir-
revocable and shall specify (A) the name of such Non-Core Bor-
rower, (B) the date of such borrowing (which shall be a Business
Day), (C) the Applicable Currency for such Individual Currency
Loans, (D) the aggregate principal amount of such Individual
Currency Loans (stated in the Applicable Currency), and (E) the
Interest Period to be applicable thereto.
(d) Without in any way limiting the obligation of any
Borrower to confirm in writing any telephonic notice of any
incurrence of Loans, the Administrative Agent or the Swing Line
Lender (in the case of any borrowing of Swing Line Loans), as the
case may be, may act without liability upon the basis of tele-
phonic notice of such borrowing, believed by the Administrative
Agent or the Swing Line Lender, as the case may be, in good faith
42
to be from such Borrower prior to receipt of written
confirmation.
D. Disbursement of Funds
(a) Revolving Loans and Swing Line Loans. No later
than 12:00 Noon (local time in the city in which the proceeds of
Loans (other than Bid Loans, Negotiated Rate Loans and Individual
Currency Loans) are to be made available in accordance with the
terms hereof) on the date specified in each Notice of Borrowing
(or no later than 5:00 P.M. (New York City time) on the date
specified for the borrowing of each Dollar Swing Line Loan and
each Dollar Revolving Loan), each Lender will make available its
pro rata portion of the Loans requested to be made on such date
(or in the case of Swing Line Loans, the Swing Line Lender shall
make available the full amount thereof), in the Applicable Cur-
rency. All such Loans shall be made available in immediately
available funds at the Applicable Payment Office of the Admin-
istrative Agent, and the Administrative Agent will make available
to the applicable Borrower at such Applicable Payment Office, in
the Applicable Currency, and in immediately available funds, the
aggregate of the amounts so made available by the Lenders prior
to 2:30 P.M. (local time in the city in which the proceeds of
such Loans are to be made available in accordance with the terms
hereof) on such day (or 5:00 P.M. (New York City time) on such
day for Dollar Swing Line Loans and Dollar Revolving Loans), in
each case to the extent of funds actually received by the Ad-
ministrative Agent.
(b) Bid Loans. No later than 12:00 Noon (local time in
the city in which the proceeds of such Bid Loans are to be made
available in accordance with the terms hereof) on the relevant
Borrowing Date, each Lender whose Bid was accepted by the ap-
plicable Borrower shall make available the proceeds of such
Lender's Bid Loan(s) (x) in the case of Dollar Bid Loans, to the
Administrative Agent at its Applicable Payment Office and (y) in
the case of Alternate Currency Bid Loans, directly to such
Borrower at such Lender's Applicable Payment Office, in each case
in immediately available funds in the Applicable Currency.
Notwithstanding the foregoing, upon the occurrence and during the
continuance of an Event of Default, if directed by the Required
Lenders and with the consent of the Administrative Agent, the
proceeds of all such Bid Loans shall be made available in
immediately available funds at the Applicable Payment Office of
the Administrative Agent. All amounts made available to the
Administrative Agent on the applicable Borrowing Date pursuant to
the preceding two sentences will then be made available on such
date to the applicable Borrower by the Administrative Agent at
the Applicable Payment Office of the Administrative Agent to the
extent of funds actually received by the Administrative Agent no
later than 2:30 P.M. (local time in the city in which the
proceeds of such loans are to be made available in accordance
43
with the terms hereof).
(c) Negotiated Rate Loans. No later than 12:00 Noon
(local time in the city in which the proceeds of such Negotiated
Rate Loans are to be made available in accordance with the terms
hereof) on the relevant Borrowing Date for each Negotiated Rate
Loan, the applicable Lender shall make available the proceeds of
such Negotiated Rate Loan (x) in the case of Dollar Negotiated
Rate Loans, to the Administrative Agent at its Applicable Payment
Office and (y) in the case of Alternate Currency Negotiated Rate
Loans, directly to the applicable Borrower at such Lender's
Applicable Payment Office, in each case in immediately available
funds in the Applicable Currency. Notwithstanding the foregoing,
upon the occurrence and during the continuance of an Event of
Default, if directed by the Required Lenders and with the consent
of the Administrative Agent, the proceeds of all such Negotiated
Rate Loans shall be made available in immediately available funds
at the Applicable Payment Office of the Administrative Agent.
All amounts made available to the Administrative Agent on the ap-
plicable Borrowing Date pursuant to the preceding two sentences
will then be made available on such date to the applicable Bor-
rower by the Administrative Agent at the Applicable Payment
Office of the Administrative Agent to the extent of funds
actually received by the Administrative Agent no later than 2:30
P.M. (local time in the city in which the proceeds of such loans
are to be made available in accordance with the terms hereof).
(d) Individual Currency Loans. No later than 12:00
Noon (local time in the city in which the proceeds of such
Individual Currency Loans are to be made available in accordance
with the terms hereof) on the relevant Borrowing Date for each
Individual Currency Loan, the applicable Lender shall make
available the proceeds of such Individual Currency Loan directly
to the applicable Borrower at such Lender's Applicable Payment
Office, in each case in immediately available funds in the
Applicable Currency. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default, if
directed by the Required Lenders and with the consent of the
Administrative Agent, the proceeds of all such Individual
Currency Loans shall be made available in immediately available
funds at the Applicable Payment Office of the Administrative
Agent. All amounts made available to the Administrative Agent on
the applicable Borrowing Date pursuant to the preceding two sen-
tences will then be made available on such date to the applicable
Borrower by the Administrative Agent at the Applicable Payment
Office of the Administrative Agent to the extent of funds
actually received by the Administrative Agent no later than 2:30
P.M. (local time in the city in which the proceeds of such loans
are to be made available in accordance with the terms hereof).
(e) Failure to Fund. Unless the Administrative Agent
shall have been notified by a Lender prior to the making of any
44
Loans that such Lender does not intend to make available to the
Administrative Agent either (w) such Lender's portion of the
Loans (other than Bid Loans, Individual Currency Loans and
Negotiated Rate Loans) to be made on such date, (x) such Lender's
Bid Loan which is to be made available to the Administrative
Agent, (y) such Lender's Negotiated Rate Loan which is to be made
available to the Administrative Agent or (z) such Lender's
Individual Currency Loan which is to be made available to the
Administrative Agent, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative
Agent on such Borrowing Date and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Lender, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together
with all costs and expenses incurred by the Administrative Agent
in connection therewith. If such Lender does not pay such cor-
responding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify
the applicable Borrower. The Administrative Agent shall be
entitled to recover on demand from such Lender interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative
Agent to such Borrower until the date such corresponding amount
is recovered by the Administrative Agent, at a rate per annum
equal to the Federal Funds Rate in effect (or in the case of
Alternate Currency Loans, at a rate based upon the all-in cost of
funds for the Applicable Currency) on each such day (as
determined by the Administrative Agent). If such corresponding
amount is not made available by such Lender to the Administrative
Agent within one Business Day after such Borrowing Date, the Ad-
ministrative Agent shall also be entitled to receive from the
applicable Borrower such amount, together with (w) in the case of
a Loan (other than a Bid Loan, an Individual Currency Loan and a
Negotiated Rate Loan), the rate of interest applicable to such
Loan as determined pursuant to Section 2.8, (x) in the case of
Bid Loan, the applicable interest rate for such Bid Loan (or in
the case of Alternate Currency Bid Loans, at a rate based upon
the all-in cost of funds for the Applicable Currency) (y) in the
case of a Negotiated Rate Loan, the applicable interest rate for
such Negotiated Rate Loan (or in the case of Alternate Currency
Negotiated Rate Loans, at a rate based upon the all-in cost of
funds for the Applicable Currency), or (z) in the case of an
Individual Currency Loan, the applicable rate based upon the all-
in cost of funds for the Applicable Currency. Nothing in this
Section shall be deemed to relieve any Lender from its obligation
to make Loans hereunder or to prejudice any rights which the ap-
plicable Borrower may have against any Lender as a result of any
failure by such Lender to make Loans hereunder.
(f) Borrower Accounts. Each Loan made to a Borrower
45
shall be made to its applicable payment account specified on
Exhibit T or such other account which it may from time to time
specify by written notice to the Administrative Agent and the
Lenders.
E. Payments.
(a) Loans and Fees. Except as otherwise specifically
provided herein, each payment, including each prepayment, of
principal and interest on the Revolving Loans, the Individual
Currency Loans, the Negotiated Rate Loans, the Bid Loans, the
Facility Fee and the Letter of Credit Commissions shall be made
by the Borrowers to the Administrative Agent at its Applicable
Payment Office in funds immediately available to the
Administrative Agent at such office by 12:00 Noon (local time in
the city in which such Applicable Payment Office is located) on
the due date for such payment, provided, however, that unless an
Event of Default has occurred and is continuing and the Required
Lenders have directed the Administrative Agent and the Borrowers
to the contrary, and the Administrative Agent shall have
consented thereto, each payment, including each prepayment, of
principal and interest on the Alternate Currency Bid Loans, the
Alternate Currency Negotiated Rate Loans, and the Individual
Currency Loans shall be made directly by the applicable Borrower
to the applicable Lender at the Applicable Payment Office of such
Lender by 12:00 Noon (local time in the city in which such
Lender's Applicable Payment Office is located). Promptly upon
receipt by the Administrative Agent of payments made to it
pursuant to this Section 2.5(a), the Administrative Agent shall
remit such payment in like funds as received to the Lenders (x)
(i) in the case of the Facility Fee, according to the Commitment
Percentage of each Lender, and (ii) in the case of the Letter of
Credit Commissions, the average daily Availability Percentage of
each Lender for the period in respect of which such payment was
made and (y) pro rata according to the aggregate outstanding
principal balance of the Revolving Loans, the applicable Indi-
vidual Currency Loans, the applicable Negotiated Rate Loans or
the applicable Bid Loans, as the case may be, of each Lender, in
the case of principal and interest thereon. The Parent and each
Lender shall promptly notify the Administrative Agent of the date
and amount of each direct payment made by a Borrower to such
Lender in respect of each Alternate Currency Bid Loan, each
Alternate Currency Negotiated Rate Loan and each Individual
Currency Loan pursuant to this Section 2.5(a).
(b) Swing Line Loans. Each payment, including each
prepayment, of principal and interest on the Swing Line Loans
shall be made by the applicable Swing Loan Borrower to the Admin-
istrative Agent at its Applicable Payment Office in funds im-
mediately available to the Administrative Agent at such office by
12:00 Noon (local time in the city in which such Applicable
Payment Office is located) on the due date for such payment and,
46
promptly upon receipt thereof by the Administrative Agent, shall
be remitted by the Administrative Agent in like funds as
received, to the Swing Line Lender.
(c) Late Payments. The failure of any of the Borrowers
to make any such payment by the time required above in this
Section 2.5 shall not constitute a default hereunder, provided
that such payment is made on such due date, but any such payment
made after 12:00 Noon (local time in the city in which such
Applicable Payment Office is located) on such due date shall be
deemed to have been made on the next Business Day for the purpose
of calculating interest on amounts outstanding on the applicable
Loans.
(d) Alternate Currencies. The principal of and inter-
est on each Alternate Currency Loan shall be paid only in the
Applicable Currency for such Alternate Currency Loan.
(e) Payments Due on Days Which are Not Business Days.
If any payment hereunder shall be due and payable on a day which
is not a Business Day, the due date thereof (except as otherwise
provided herein) shall be extended to the next Business Day and
with respect to payments in respect of principal and interest
shall be payable at the applicable rate specified herein during
such extension.
F. Conversions
(a) Each applicable Borrower shall have the option to
convert on any Business Day all or a portion of the outstanding
principal amount of ABR Advances (other than ABR Advances
constituting Swing Line Loans), Eurodollar Advances or Core
Currency Euro Advances into (i) in the case of an ABR Advance,
one or more Eurodollar Advances, (ii) in the case of a Eurodollar
Advance, one or more ABR Advances or one or more new Eurodollar
Advances and (iii) in the case of a Core Currency Euro Advance,
one or more new Core Currency Euro Advances of the same Core
Currency, provided that (A) except as otherwise provided in
Section 2.14(b), Eurodollar Advances may be converted into ABR
Advances or new Eurodollar Advances only on the last day of the
Interest Period applicable to the Eurodollar Advances being
converted, (B) except as otherwise provided in Section 2.14(b),
Core Currency Euro Advances may be converted into new Core
Currency Euro Advances only on the last day of the Interest
Period applicable to the Core Currency Euro Advances being
converted, (C) the outstanding principal amount of the new
Eurodollar Advances having the same Interest Period or the new
Core Currency Euro Advances having the same Interest Period shall
be in an amount equal to $500,000 or such amount plus a whole
multiple of $100,000 in excess thereof (or an amount in the
applicable Alternate Currency having a Dollar Equivalent of ap-
proximately $500,000 or such amount plus a whole multiple of
47
approximately $100,000 in excess thereof in the case of such Core
Currency Euro Advances), (D) the outstanding principal amount of
the new ABR Advances shall be in an amount equal to $500,000 or
such amount plus a whole multiple of $100,000 in excess thereof,
(E) ABR Advances or Eurodollar Advances may not be converted into
Eurodollar Advances if any Default or Event of Default is in
existence on the date of the conversion and the Administrative
Agent or the Required Lenders have determined that such a
conversion is not appropriate, and (F) no conversion pursuant to
this Section shall result in a greater number of Eurodollar
Advances or Core Currency Euro Advances than is permitted under
Section 2.2(d).
(b) Each such conversion shall be effected by the ap-
plicable Borrower by giving the Administrative Agent, at its
office set forth in Section 11.2 prior to 10:00 A.M. in the case
of Dollar Loans, at least two Business Days prior written notice
and, in the case of Core Currency Euro Advances, at least three
Business Days prior written notice (each a "Notice of Conver-
sion"), specifying the ABR Advances, the Eurodollar Advances or
the Core Currency Euro Advances to be so converted, the date of
such conversion (which shall be a Business Day) and, if to be
converted into Eurodollar Advances or Core Currency Euro
Advances, the Interest Period to be applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any
such proposed conversion affecting any of its Loans.
(c) If with respect to the expiration of an existing
Interest Period for a Eurodollar Advance or a Core Currency Euro
Advance the applicable Borrower has failed to deliver a Notice of
Conversion with respect thereto, such Borrower shall be deemed to
have elected (i) if a Eurodollar Advance, to convert such
Eurodollar Advance to an ABR Advance and (ii) if a Core Currency
Euro Advance, to convert such Core Currency Euro Advance to a new
Core Currency Euro Advance with a one month Interest Period, in
either case effective as of the expiration date of such existing
Interest Period.
G. Pro Rata Borrowings; Special Procedures and Assumptions
(a) Pro Rata Borrowings. In connection with each
borrowing of Revolving Loans, each Lender shall make available an
amount equal to the aggregate amount of such Revolving Loans,
multiplied by such Lender's Availability Percentage calculated in
accordance with Section 2.7(b). It is understood that no Lender
shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans
hereunder.
(b) Special Procedures and Assumptions.
48
Notwithstanding anything to the contrary contained herein:
(i) all Notices of Borrowing and all Letter of Credit
Requests to be delivered to the Administrative Agent on the
same day shall be delivered to the Administrative Agent at
the same time;
(ii) with respect to any Loans (other than a Bid Loan
or a Negotiated Rate Loan) or Letters of Credit requested
pursuant to one or more Notices of Borrowing or Letter of
Credit Requests delivered to the Agent on the same day,
during the period commencing on the date of such delivery to
the Administrative Agent and ending on the Borrowing Date of
the last such Loan or the date of issuance of the last such
Letter of Credit to be made or issued pursuant to such
Notices of Borrowing or Letter of Credit Requests (the
"Borrowing/Issuance Period"):
(A) no additional Loan (other than a Bid Loan or a
Negotiated Rate Loan) shall be requested to be made and
no additional Letter of Credit shall be requested to be
issued;
(B) no Loan (other than a Bid Loan or a Negotiated
Rate Loan) shall be voluntarily prepaid; and
(C) neither the Aggregate Commitments, the Swing
Line Commitment, any Individual Currency Commitment of
any Lender, nor the Letter of Credit Commitment shall
be voluntarily reduced;
(iii) for purposes of calculating the Availability
Percentage for any Revolving Loans requested to be made
during any Borrowing/Issuance Period:
(A) any payment of any Revolving Loan, Individual
Currency Loan, Swing Line Loan or reimbursement
obligation in respect of a Letter of Credit which is
scheduled to be made during such Borrowing/Issuance
Period shall be deemed to have been made immediately
prior to the commencement of such Borrowing/Issuance
Period;
(B) any Letter of Credit which is scheduled to
expire or otherwise terminate during such
Borrowing/Issuance Period shall be deemed to have
expired or otherwise terminated immediately prior to
the commencement of such Borrowing/Issuance Period;
(C) any Individual Currency Loans which are to be
made during such Borrowing/Issuance Period shall be
deemed to have been made immediately prior to the
49
making of any Revolving Loans or Swing Line Loans, or
the issuance of any Letters of Credit, during such
Borrowing/Issuance Period; and
(D) any Revolving Loans, Swing Line Loans and
Letters of Credit which are to be made or issued during
such Borrowing/Issuance Period shall be deemed to have
been made and issued simultaneously; and
(iv) the Availability Percentage during any
Borrowing/Issuance Period shall be determined by the
Administrative Agent in accordance with this Section 2.7(b) on
the first day of such Borrowing/Issuance Period and shall
continue in effect through the last day of such
Borrowing/Issuance Period.
H. Interest
(a) Each Domestic Borrower agrees to pay interest in
respect of the unpaid principal amount of each ABR Advance made
to such Domestic Borrower from the date thereof until the
conversion or maturity (whether by acceleration or otherwise) of
such ABR Advance, at a rate per annum which shall be equal to the
sum of the Applicable Margin plus the Alternate Base Rate in
effect from time to time.
(b) Each Domestic Borrower agrees to pay interest in
respect of the unpaid principal amount of each Eurodollar Advance
made to such Domestic Borrower from the date thereof until the
conversion or maturity (whether by acceleration or otherwise) of
such Eurodollar Advance, at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of
the Applicable Margin plus the Eurodollar Rate for such Interest
Period.
(c) Each Borrower agrees to pay interest in respect of
the unpaid principal amount of each Core Currency Euro Advance
made to such Borrower from the date thereof until the conversion
or maturity (whether by acceleration or otherwise) of such Core
Currency Euro Advance at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of
the Applicable Margin plus the Core Currency Euro Rate for such
Interest Period.
(d) Each Non-Core Currency Borrower agrees to pay
interest in respect of the unpaid principal amount of each
Individual Currency Loan made to such Non-Core Currency Borrower
from the date thereof until the maturity (whether by acceleration
or otherwise) of such Individual Currency Loan at a rate per
annum which shall, during the Interest Period applicable thereto,
be equal to the sum of the Applicable Margin plus the Individual
Currency Rate for such Interest Period.
50
(e) Each Swing Line Borrower agrees to pay interest in
respect of the unpaid principal amount of each Swing Line
Negotiated Rate Advance made to such Swing Line Borrower from the
date thereof until the maturity (whether by acceleration or
otherwise) of such Swing Line Negotiated Rate Advance at a rate
per annum which shall, during the Interest Period applicable
thereto, be equal to the Swing Line Negotiated Rate for such
Interest Period.
(f) Each Borrower agrees to pay interest in respect of
the unpaid principal amount of each Bid Loan made to such
Borrower from the date thereof until the maturity (whether by
acceleration or otherwise) of such Bid Loan at a rate per annum
which shall, during the Interest Period applicable thereto, be
equal to the Bid Rate for such Interest Period.
(g) Each Borrower agrees to pay interest in respect of
the unpaid principal amount of each Negotiated Rate Loan made to
such Borrower from the date thereof until the maturity (whether
by acceleration or otherwise) of such Negotiated Rate Loan at a
rate per annum which shall, during the Interest Period applicable
thereto, be equal to the Negotiated Rate for such Interest
Period.
(h) Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan shall, in each
case, bear interest at a rate per annum equal to the rate which
is 2% in excess of the rate applicable to such Loan (or in the
case of a Dollar Bid Loan or a Dollar Negotiated Rate Loan, 2% in
excess of the Alternate Base Rate, or in the case of an Alternate
Currency Bid Loan, an Alternate Currency Swing Line Loan, an
Alternate Currency Negotiated Rate Loan, an Individual Currency
Loan or a Letter of Credit designated in an Alternate Currency,
2% in excess of the all-in rate determined by the applicable
Lender, Issuing Bank or Swing Line Lender, as the case may be, as
its cost of funds in the Applicable Currency or, in the case of
such Letter of Credit, the applicable Currency) until paid in
full (whether before of after the entry of a judgment thereon).
If all or any portion of any reimbursement obligation in respect
of a Letter of Credit designated in Dollars shall not be paid
when due (whether at the stated maturity thereof, by acceleration
or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the Alternate Base Rate plus 2%, from the
date of such nonpayment until paid in full (whether before or
after the entry of a judgment thereon). Any other overdue amount
payable hereunder shall, to the extent permitted by law, bear
interest at a rate per annum equal to the Alternate Base Rate
plus 2% until paid in full (whether before or after the entry of
a judgment thereon). All such interest shall be payable on de-
mand.
(i) Accrued (and theretofore unpaid) interest shall be
51
payable (i) in respect of each ABR Advance constituting a
Revolving Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Advance and each Core
Currency Euro Advance, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period, (iii) in
respect of each Bid Loan, Negotiated Rate Loan, Individual
Currency Loan, Swing Line Negotiated Rate Advance and ABR Advance
made as a Swing Loan, on the last day of the Interest Period ap-
plicable thereto, and (iv) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(j) The Administrative Agent shall determine the
respective interest rate for each Interest Period applicable to a
Eurodollar Advance or Core Currency Euro Advance for which such
determination is being made and shall promptly notify the
applicable Borrower and the Lenders thereof.
(k) Interest on all Loans shall be calculated on the
basis of a 360 day year for the actual number of days elapsed
except that interest on ABR Advances to the extent based on the
BNY Rate, interest on Core Currency Euro Advances in Sterling
Pounds and interest on Individual Currency Loans designated in
Australian Dollars, Canadian Dollars, Italian Lira and New Taiwan
Dollars shall be calculated on the basis of a 365 or 366-day year
(as the case may be). Any change in the interest rate on the
Loans resulting from a change in the Alternate Base Rate or the
Federal Funds Rate shall become effective as of the opening of
business on the day on which such change shall become effective.
The Administrative Agent shall, as soon as practicable, notify
the Parent (on behalf of all Borrowers) and the Lenders of the
effective date and the amount of each change in the BNY Rate, but
any failure so to notify shall not in any manner affect the obli-
gation of the Borrowers to pay interest on the Loans in the
amounts and on the dates required. Each determination of (i) the
Alternate Base Rate, a Eurodollar Rate or a Core Currency Euro
Rate by the Administrative Agent, (ii) an Individual Currency
Rate by the applicable Lender, and (iii) an all-in cost of funds
rate or any rate based thereon by the Administrative Agent or
the Reference Lender, or such applicable Lender, as the case may
be, in each case pursuant to this Agreement shall be conclusive
and binding on all parties hereto absent manifest error. The
Borrowers acknowledge that to the extent interest payable on ABR
Advances is based on the BNY Rate, such Rate is only one of the
bases for computing interest on loans made by the Lenders, and by
basing interest payable on ABR Advances on the BNY Rate, the
Lenders have not committed to charge, and the Borrowers have not
in any way bargained for, interest based on a lower or the lowest
rate at which the Lenders may now or in the future make loans to
52
other borrowers.
(l) Decreases in the Applicable Margin resulting from
a change in Pricing Levels I, II, III, IV and/or V shall become
effective upon the delivery by the Parent to the Administrative
Agent of a certificate of the Responsible Officer certifying as
to a change in the Rating by Moody's or S&P of the senior
unsecured long term debt rating of the Parent. Increases in the
Applicable Margin shall become effective on the effective date of
any downgrade or withdrawal in the Rating by Moody's or S&P of
the senior unsecured long term debt rating of the Parent.
(m) If the Reference Lender shall for any reason no
longer be a Lender, it shall thereupon cease to be the Reference
Lender. The Administrative Agent shall, by notice to the
Borrowers and the Lenders, designate another Lender as the
Reference Lender so that there shall at all times be at least one
Reference Lender. The Reference Lender shall use its best
efforts to furnish quotations of rates to the Administrative
Agent on a timely basis as contemplated hereby.
I. Termination or Reduction of Aggregate Commitments,
Swing Line Commitment, Individual Currency Commitments and Letter
of Credit Commitment
(a) Voluntary Reductions. The Parent shall have the
right, upon at least three Business Days' prior written notice to
the Administrative Agent, at any time to terminate the Aggregate
Commitments or the Letter of Credit Commitment or from time to
time to reduce permanently the Aggregate Commitments or the
Letter of Credit Commitment, provided, however, that any such re-
duction shall be in the amount of $10,000,000 or such amount plus
a whole multiple of $1,000,000 in excess thereof.
(b) Swing Line Commitment. The Parent shall have the
right, upon at least three Business Days' prior written notice to
the Administrative Agent and the Swing Line Lender, at any time,
to reduce permanently the Swing Line Commitment in whole at any
time, or in part from time to time, to an amount not less than
the aggregate principal balance of the Swing Line Loans then out-
standing (after giving effect to any contemporaneous prepayment
thereof) without premium or penalty, provided that each partial
reduction of the Swing Line Commitment shall be in an amount
equal to $10,000,000 or such amount plus a whole multiple of
$1,000,000 in excess thereof.
(c) Individual Currency Commitments. The Parent shall
have the right, upon at least three Business Days' prior written
notice to the Administrative Agent and the applicable Lender, at
any time, to reduce permanently any Individual Currency Com-
mitment of such Lender in whole at any time, or in part from time
to time, to an amount not less than the aggregate principal
53
balance of the Individual Currency Loans of such Lender then out-
standing under such Individual Currency Commitment (after giving
effect to any contemporaneous prepayment thereof) without premium
or penalty provided that each partial reduction of such
Individual Currency Commitment shall be in an amount in the
applicable Non-Core Currency having a Dollar Equivalent of
approximately $1,000,000 or such amount plus a whole multiple of
approximately $1,000,000 in excess thereof.
(d) In General. Each reduction of the Aggregate Com-
mitments shall be applied pro rata according to the Commitment
Percentage of each Lender, and each reduction in the Letter of
Credit Commitment shall be applied pro rata according to the
Availability Percentage of each Lender at the time of such
reduction. Simultaneously with each reduction of the Aggregate
Commitments under this Section, the Borrowers shall pay the
Facility Fee accrued on the amount by which the Aggregate Commit-
ments have been reduced. Simultaneously with each reduction of
the Aggregate Commitments, the Swing Line Commitment and the
Individual Currency Commitments, the Borrowers shall prepay the
Loans as required by Section 2.10. The Aggregate Commitments
shall not be reduced below an amount equal to the Aggregate
Credit Exposure (after giving effect to any prepayment of the
Loans made simultaneously with such reduction of the Aggregate
Commitments). The Aggregate Commitments shall not be reduced to
the extent, immediately after giving effect thereto, the
Commitment of any Lender would exceed the sum of (I) the ag-
gregate principal amount of all Revolving Loans then outstanding
from such Lender (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Revolving
Loan), plus (II) the aggregate principal amount of all Individual
Currency Loans then outstanding from such Lender (determined on
the basis of the Dollar Equivalent of each such Individual Cur-
rency Loan), plus (III) the SL/LC Credit Exposure of such Lender.
The Letter of Credit Commitment shall not be reduced below an
amount equal to the Letter of Credit Exposure.
J. Prepayments of the Loans
(a) Voluntary Prepayments. Each Borrower may, at its
option, prepay the Loans made to such Borrower without premium or
penalty, (x) in the case of Revolving Loans and Swing Loans, in
full at any time or in part from time to time, and (y) in the
case of Negotiated Rate Loans, Bid Loans and Individual Currency
Loans, in full at any time, in each case by notifying the
Administrative Agent in writing at least three Business Days
prior to the proposed prepayment date, identifying the Loans to
be prepaid as Revolving Loans, Swing Line Loans, Negotiated Rate
Loans, Bid Loans or Individual Currency Loans and specifying
whether the Loans to be prepaid consist of ABR Advances, Euro-
dollar Advances, Core Currency Euro Advances or Swing Line
Negotiated Rate Advances, or a combination thereof, the amount to
54
be prepaid and the date of prepayment. Such notice shall be ir-
revocable and the amount specified in such notice shall be due
and payable on the date specified, together with accrued interest
to the date of such payment on the amount prepaid. Upon receipt
of such notice, the Administrative Agent shall promptly notify
each Lender thereof in the case of Revolving Loans, the Swing
Line Lender in the case of Swing Loans and the applicable Lender
or Lenders in the case of Bid Loans, Negotiated Rate Loans and
Individual Currency Loans. Each partial prepayment of ABR Ad-
vances pursuant to this subsection shall be in an aggregate
principal amount of $100,000 or such amount plus a whole multiple
of $50,000 in excess thereof, or, if less, the outstanding
principal balance of the ABR Advances. After giving effect to
any partial prepayment with respect to Eurodollar Advances or
Core Currency Euro Advances which were made (whether as the
result of a borrowing or a conversion) on the same date and which
had the same Interest Period, the outstanding principal amount of
such Eurodollar Advances or Core Currency Euro Advances shall
equal (subject to Section 2.6) $500,000 or such amount plus a
whole multiple of $100,000 in excess thereof (or the Alternate
Currency Equivalent of approximately $500,000 or such amount plus
a whole multiple of approximately $100,000 in excess thereof in
the case of a prepayment of Core Currency Euro Advances).
(b) Mandatory Prepayments of Loans.
(i) Subject to clause (ii) below with respect to
Swing Line Loans and clause (iii) below with respect to the
Individual Currency Loans of each Lender, simultaneously with
each reduction of the Aggregate Commitments under Section 2.9,
the Borrowers shall prepay the Loans by the amount, if any, by
which the Aggregate Credit Exposure exceeds the amount of the
Aggregate Commitments as so reduced.
(ii) Simultaneously with each reduction of the
Swing Line Commitment under Section 2.9, the Swing Line Borrowers
shall prepay the Swing Line Loans by the amount, if any, by which
the outstanding principal balance of the Swing Line Loans (de-
termined on the basis of the Dollar Equivalent for each out-
standing Alternate Currency Swing Line Loan) exceeds the amount
of the Swing Line Commitment as so reduced.
(iii) Simultaneously with each reduction of the
Individual Currency Commitment of any Lender under Section 2.9,
the applicable Non-Core Currency Borrower shall prepay the
Individual Currency Loans made by such Lender to such Non-Core
Currency Borrower under such Individual Currency Commitment by
the amount, if any, by which the outstanding principal balance of
such Individual Currency Loans exceeds the amount of such
Individual Currency Commitment as so reduced.
(iv) If on any date that the Dollar Equivalent is
55
required to be calculated pursuant to Section 11.6 the Aggregate
Credit Exposure shall exceed the Aggregate Commitments, the
Borrowers shall prepay the Loans in an aggregate principal amount
such that immediately after giving effect thereto, the Aggregate
Credit Exposure shall not exceed the Aggregate Commitments.
(v) If on any date that the Dollar Equivalent is
required to be calculated pursuant to Section 11.6 the Aggregate
Credit Exposure attributable to all Loans and Letters of Credit
designated in Non-Core Currencies shall exceed $60,000,000, the
Borrowers shall prepay such Loans in an aggregate principal
amount such that immediately after giving effect thereto, the
Aggregate Credit Exposure attributable to all Loans and Letters
of Credit designated in Non-Core Currencies shall not exceed
$60,000,000.
(c) In General. If any prepayment is made in respect
of any Eurodollar Advance, Core Currency Euro Advance, Swing Line
Negotiated Rate Advance, Individual Currency Loan, Negotiated
Rate Loan or Bid Loan, in whole or in part, prior to the last day
of the Interest Period applicable thereto, the applicable Bor-
rower agrees to indemnify the Lenders in accordance with Section
2.15.
K. Bid Loans; Procedure
(a) Each Borrower may make Bid Requests by 12:00 Noon
(i) at least two Business Days prior to the proposed Borrowing
Date for one or more Bid Loans. Each Bid Request shall be given
to the Administrative Agent (which shall promptly on the same day
give notice thereof to each Lender by facsimile of an Invitation
to Bid if the Bid Request is not rejected pursuant to this Sec-
tion), shall be by telephone (confirmed in writing promptly on
the same day by the delivery of a Bid Request signed by the
applicable Borrower), and shall specify (i) the proposed
Borrowing Date, which shall be a Business Day, (ii) the aggregate
amount of the requested Bid Loans (the "Maximum Request") which
shall not (A) exceed an amount which, on the proposed Borrowing
Date, and after giving effect to the proposed Bid Loans, would
result in (x) the Aggregate Credit Exposure exceeding the Ag-
gregate Commitments or (y) the Aggregate Credit Exposure at-
tributable to all Loans and Letters of Credit designated in Non-
Core Currencies exceeding $60,000,000, or (B) with respect to
each Bid Loan be less than $500,000 or such amount plus a whole
multiple of $100,000 in excess thereof (or approximately the Dol-
lar Equivalent thereof in the case of Alternate Currency Bid
Loans), (iii) the Bid Interest Period(s) (up to three Bid Inter-
est Periods may be requested pursuant to each Bid Request)
therefor and the last day of each such Interest Period and (iv)
the Applicable Currency for each Bid Loan. A Bid Request that
does not conform substantially to the form of Exhibit F shall be
rejected, and the Administrative Agent shall promptly notify the
56
applicable Borrower of such rejection.
(b) Each Lender in its sole discretion may (but is not
obligated to) submit one or more Bids to the Administrative Agent
and the Parent not later than 9:30 A.M. (i) one Business Day
prior to the proposed Borrowing Date specified in such Bid
Request in the case of a Bid Loan (such 9:30 A.M. time on such
Business Days each being herein called a "Bid Submission Dead-
line"), by fax or in writing, and thereby irrevocably offer to
make all or any part (any such part referred to as a "Portion")
of any Bid Loan described in the relevant Bid Request, at a rate
of interest per annum (each a "Bid Rate") specified therein, in
an aggregate principal amount of not less than $500,000 or such
amount plus a wholemultiple of $100,000 in excess thereof (or ap-
proximately the Dollar Equivalent thereof in the case of Al-
ternate Currency Bid Loans), provided that Bids submitted by the
Administrative Agent may only be submitted if the Administrative
Agent notifies the Parent and the applicable Borrower of the
terms of its Bid not later than fifteen minutes prior to the Bid
Submission Deadline. Multiple Bids may be delivered to and by
the Administrative Agent. The aggregate Portions of Bid Loans
for any or all Interest Periods offered by each Lender in its Bid
may exceed the Maximum Request contained in the relevant Bid Re-
quest, provided that each Bid shall set forth the maximum ag-
gregate amount of the Bid Loans offered thereby which the ap-
plicable Borrower may accept (the "Maximum Offer"), which Maximum
Offer shall not exceed the Maximum Request.
(c) The Administrative Agent shall promptly give
notice by telephone (promptly confirmed in writing) to the Parent
and the applicable Borrower of all Bids received by the
Administrative Agent which comply in all material respects with
this Section prior to the Bid Submission Deadline. The ap-
plicable Borrower shall, in its sole discretion but subject to
Section 2.11(d), irrevocably accept or reject any such Bid (or
any Portion thereof) not later than 10:30 A.M. one Business Day
prior to the proposed Borrowing Date by notice to the
Administrative Agent by telephone (confirmed in writing in the
form of a Bid Accept/Reject Letter promptly the same day).
Promptly on the day of the Bid Submission Deadline, the Admin-
istrative Agent will give notice in the form of a Bid Loan
Confirmation to each Lender that submitted a Bid as to the
extent, if any, that such Lender's Bid shall have been accepted.
If the Administrative Agent fails to receive notice from the
applicable Borrower of its acceptance or rejection of any Bids at
or prior to 10:30 A.M. on the applicable day, all such Bids shall
be deemed to have been rejected by the applicable Borrower, and
the Administrative Agent will give to each Lender which submitted
a Bid notice of such rejection by telephone on such day.
(d) If the applicable Borrower accepts a Portion of a
proposed Bid Loan for a single Interest Period at the Bid Rate
57
provided therefor in a Lender's Bid, such Portion shall be in a
principal amount of $500,000 or such amount plus a whole multiple
of $100,000 in excess thereof (or approximately the Dollar
Equivalent thereof in the case of Alternate Currency Bid Loans),
subject to such lesser allocation as may be made pursuant to the
provisions of this subsection. The aggregate principal amount of
Bid Loans accepted by the applicable Borrower following Bids
responding to a Bid Request shall not exceed the Maximum Request.
The aggregate principal amount of Bid Loans accepted by the ap-
plicable Borrower pursuant to a Lender's Bid shall not exceed the
Maximum Offer therein contained. If the applicable Borrower
accepts any Bid Loans or Portion offered in any Bid, the
applicable Borrower must accept Bids (and Bid Loans and Portions
thereby offered) based exclusively upon the successively lowest
Bid Rates within each Interest Period and no other criteria. If
two or more Lenders submit Bids with identical Bid Rates for the
same Bid Interest Period and the applicable Borrower accepts any
thereof, the applicable Borrower shall, subject to the first
three sentences of this subsection, accept all such Bids as
nearly as possible in proportion to the amounts of such Lender's
respective Bids with identical Bid Rates for such Bid Interest
Period, provided, that if the amount of Bid Loans to be so
allocated is not sufficient to enable each such Lender to make
such Bid Loan (or Portions thereof) in an aggregate principal
amount of $500,000 or such amount plus a whole multiple of
$100,000 in excess thereof (or the Dollar Equivalent thereof in
the case of Alternate Currency Bid Loans), the applicable
Borrower shall round the Bid Loans (or Portions thereof) al-
located to such Lender or Lenders as the applicable Borrower
shall select as necessary to a minimum of $500,000 or such amount
plus a whole multiple of $100,000 in excess thereof (or the
Dollar Equivalent thereof in the case of Alternate Currency Bid
Loans).
(e) Each Lender which makes a Bid Loan shall notify
the Administrative Agent promptly of the making thereof (unless
the proceeds of such Bid Loan were advanced to the Administrative
Agent).
(f) All notices required by this Section shall be
given in accordance with Section 11.2.
(g) Each Bid Loan shall be due and payable on the
earlier of (x) the last day of the Interest Period applicable
thereto and (y) the Maturity Date.
L. Negotiated Rate Loans; Procedure
(a) If at any time any Borrower, any Lender and the
Parent shall have agreed that such Lender shall make a Negotiated
Rate Loan to such Borrower, such Borrower and the Parent shall
promptly execute and deliver to such Lender a Negotiated Rate
58
Confirmation Request, specifying (i) the proposed Borrowing Date,
which shall be a Business Day, (ii) the aggregate amount of the
requested Negotiated Rate Loan which shall not (A) exceed an
amount which, on the proposed Borrowing Date, and after giving
effect to the proposed Negotiated Rate Loan, would result in (x)
the Aggregate Credit Exposure exceeding the Aggregate Commitments
or (y) the Aggregate Credit Exposure attributable to all Loans
and Letters of Credit designated in Non-Core Currencies exceeding
$60,000,000, or (B) be less than $100,000 or such amount plus a
whole multiple of $50,000 in excess thereof (or approximately the
Dollar Equivalent thereof in the case of Alternate Currency
Negotiated Rate Loans), (iii) the applicable rate of interest
therefor (the "Negotiated Rate"), (iv) the Negotiated Rate In-
terest Period therefor and the last day of such Negotiated Rate
Interest Period, and (v) the Applicable Currency therefor. If
such Negotiated Rate Confirmation Request is in all respects sat-
isfactory to such Lender, it shall promptly sign a copy thereof
and deliver a copy thereof to such Borrower, the Parent and the
Administrative Agent (the "Negotiated Rate Confirmation").
(b) Each Lender which makes a Negotiated Rate Loan
shall notify the Administrative Agent promptly of the making
thereof (unless the proceeds of such Negotiated Rate Loan were
advanced to the Administrative Agent).
(c) All notices required by this Section shall be
given in accordance with Section 11.2.
(d) Each Negotiated Rate Loan shall be due and payable
on the earlier of (x) the last day of the Interest Period ap-
plicable thereto and (y) the Maturity Date.
M. Taxes
(a) Payments to Be Free and Clear. All payments by
each Borrower under the Loan Documents shall be made free and
clear of, and without any deduction or withholding for, any
Indemnified Tax. If any Credit Party or any other Person is
required by any law, rule, regulation, order, directive, treaty
or guideline to make any deduction or withholding (which
deduction or withholding would constitute an Indemnified Tax)
from any amount required to be paid by any Credit Party to or on
behalf of any Indemnified Tax Person under any Loan Document
(each a "Required Payment"):
(i) such Credit Party shall notify the Administra-
tive Agent and such Indemnified Tax Person of any such
requirement or any change in any such requirement as soon as such
Credit Party becomes aware of it;
(ii) such Credit Party shall pay such Indemnified
Tax before the date on which penalties attach thereto, such
59
payment to be made (if the liability to pay is imposed on such
Credit Party) for its own account or (if the liability is imposed
on such Indemnified Tax Person) on behalf of and in the name of
such Indemnified Tax Person;
(iii) such Credit Party shall pay to such Indem-
nified Tax Person an additional amount such that such Indemnified
Tax Person shall receive on the due date therefor an amount
equal to the Required Payment had no such deduction or
withholding been required; and
(iv) such Credit Party shall, within 30 days after
paying such Indemnified Tax, deliver to the Administrative Agent
and the applicable Indemnified Tax Person satisfactory evidence
of such payment to the relevant Governmental Authority.
(b) Other Indemnified Taxes. If an Indemnified Tax
Person or any affiliate thereof is required by any law, rule,
regulation, order, directive, treaty or guideline to pay any
Indemnified Tax (excluding an Indemnified Tax which is subject to
Section 2.13(a)) with respect to any sum paid or payable by any
Credit Party to such Indemnified Tax Person under the Loan
Documents:
(i) such Indemnified Tax Person shall notify such
Credit Party of any such payment of Indemnified Tax; and
(ii) such Credit Party shall pay to such Indem-
nified Tax Person the amount of such Indemnified Tax within 5
days of such notice.
(c) Tax on Indemnified Taxes. If any amounts are
payable by a Credit Party in respect of Indemnified Taxes pur-
suant to Section 2.13(a) or (b), such Credit Party agrees to pay
to the applicable Indemnified Tax Person, within 5 Business Days
of written request therefor, an amount equal to all Taxes imposed
with respect to such amounts as such Indemnified Tax Person shall
determine in good faith are payable by such Indemnified Tax
Person or any affiliate thereof in respect of such amounts and in
respect of any amounts paid to or on behalf of such Indemnified
Tax Person pursuant to this clause (c).
(d) Exception for Existing Taxes. No amount shall be
required to be paid to any Indemnified Tax Person under Section
2.13(a)(iii) or (b) with respect to an Indemnified Tax to the
extent that such Indemnified Tax would have been required to have
been paid under any law, rule, regulation, order, directive,
treaty or guideline in effect on the Effective Date.
(e) U.S. Tax Certificates. Each Lender that is or-
ganized under the laws of any jurisdiction other than the United
States or any political subdivision thereof shall deliver to the
60
Administrative Agent for transmission to the Parent, on or prior
to the first Borrowing Date (in the case of each Lender listed on
the signature pages hereof) or on the effective date of the
Assignment and Acceptance Agreement or master assignment and
acceptance agreement pursuant to which it becomes a Lender in
accordance with Section 11.1 or 11.7, (in the case of each other
Lender), and at such other times as may be necessary in the
determination of the Parent, any Credit Party or the Ad-
ministrative Agent (each in the reasonable exercise of its
discretion), such certificates, documents or other evidence,
properly completed and duly executed by such Lender (including,
without limitation, Internal Revenue Service Form 1001 or Form
4224) to establish that such Lender is not subject to deduction
or withholding of United States federal income tax under Section
1441 or 1442 of the Code or otherwise (or under any comparable
provisions of any successor statute) with respect to any payments
to such Lender of principal, interest, fees or other amounts
payable under the Loan Documents. No Credit Party shall be
required to pay any additional amount to any such Lender under
Section 2.13(a)(iii) if such Lender shall have failed to satisfy
the requirements of the immediately preceding sentence; provided
that if such Lender shall have satisfied such requirements on the
first Borrowing Date (in the case of each Lender listed on the
signature pages hereof) or on the effective date of the
Assignment and Acceptance Agreement or master assignment and
acceptance agreement pursuant to which it became a Lender (in the
case of each other Lender), nothing in this subsection shall
relieve any Credit Party of its obligation to pay any additional
amounts pursuant to Section 2.13(a)(iii) in the event that, as a
result of any change in applicable law (including, without
limitation, any change in the interpretation thereof), such
Lender is no longer properly entitled to deliver certificates,
documents or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described
in the immediately preceding sentence.
(f) Other Tax Certificates. Each Indemnified Tax
Person agrees to use reasonable efforts to deliver to any Credit
Party, promptly upon any request therefor from time to time by
such Credit Party, such forms, documents and information as may
be required by applicable law, regulation or treaty from time to
time and to file all appropriate forms to obtain a certificate or
other appropriate documents from the appropriate Governmental
Authorities to establish that payments made in respect of any
Alternate Currency Loan or Letter of Credit designated in an
Alternate Currency by such Credit Party can be made without (or
at a reduced rate of) withholding of Taxes, provided, however,
that if such Indemnified Tax Person is or becomes unable by
virtue of any applicable law, regulation or treaty, to establish
such exemption or reduction, such Credit Party shall nonetheless
remain obligated under Subsection 2.13(a) to pay the amounts
described therein, and provided further, that no Indemnified Tax
61
Person shall be required to take any action hereunder which, in
the sole discretion of such Indemnified Tax Person, would cause
such Indemnified Tax Person or any affiliate thereof to suffer a
material economic, legal or regulatory disadvantage.
(g) Adverse Tax Position.
(i) An "Excess Tax" shall be the excess of (x) the
Tax imposed, levied, collected, withheld or assessed by any
Governmental Authority without the United States from which a
payment is made by or on behalf of a Credit Party subject to an
Adverse Tax Position or in which such Credit Party or an
affiliate has an office or is deemed to be doing business, over
(y) the Tax which would be imposed, levied, collected, withheld
or assessed by such Governmental Authority, but for the existence
of such Adverse Tax Position.
(ii) An "Adverse Tax Position" with respect to a
Credit Party shall mean a position resulting from the lack of
adequate capitalization or other similar condition with respect
to such Credit Party which, under applicable law or applicable
treaty, results in higher Taxes on payments under the Loan
Documents than would otherwise be imposed.
(iii) All payments by each Borrower under the Loan
Documents shall be made free and clear of, and without any deduc-
tion or withholding for, any Excess Tax. If any Credit Party or
any other Person is required by any law, rule, regulation, order,
directive, treaty or guideline to make any deduction or with-
holding on account of any Tax from any Required Payment with
respect to any Indemnified Tax Person and if all or a portion of
such Tax represents Excess Tax:
(A) such Credit Party shall notify the Ad-
ministrative Agent and such Indemnified Tax Person of any such
requirement or any change in any such requirement as soon as such
Credit Party becomes aware of it;
(B) such Credit Party shall pay such Excess
Tax before the date on which penalties attach thereto, such
payment to be made (if the liability to pay is imposed on such
Credit Party) for its own account or (if the liability is imposed
on such Indemnified Tax Person) on behalf of and in the name of
such Indemnified Tax Person;
(C) such Credit Party shall pay to such In-
demnified Tax Person an additional amount such that such In-
demnified Tax Person shall receive on the due date therefor an
amount equal to the Required Payment had no such deduction or
withholding been required with respect to such Excess Tax; and
(D) such Credit Party shall, within 30 days
62
after paying such Excess Tax, deliver to the Administrative Agent
and the applicable Indemnified Tax Person satisfactory evidence
of such payment to the relevant Governmental Authority.
(iv) If an Indemnified Tax Person or any affiliate
thereof is required by any law, rule, regulation, order,
directive, treaty or guideline to pay any Excess Tax (excluding
Excess Tax which is subject to Section 2.13(g)(iii)) with respect
to any sum paid or payable by any Credit Party to such
Indemnified Tax Person under the Loan Documents:
(A) such Indemnified Tax Person shall notify
such Credit Party of any such payment of Excess Tax; and
(B) such Credit Party shall pay to such In-
demnified Tax Person the amount of such Excess Tax within 5
Business Days of such notice.
(v) If any amounts are payable by a Credit Party
in respect of Excess Tax pursuant to Section 2.13(g)(iii) or
(iv) such Credit Party agrees to pay to the applicable
Indemnified Tax Person, within 5 days of written request
therefor, an amount equal to all Taxes imposed with respect to
such amounts as such Indemnified Tax Person shall determine are
payable by such Indemnified Tax Person or any affiliate thereof
in respect of such amounts and in respect of any amounts paid to
or on behalf of such Indemnified Tax Person pursuant to this
clause (v).
N. Increased Costs, Illegality, etc.
(a) In the event that any Lender with respect to
clauses (ii) and (iii) below or the Administrative Agent, the
Reference Lender, or the applicable Lender, as the case may be,
with respect to clauses (i) and (iv) below shall have determined
(which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on the second Business Day immediately
preceding the making of any requested Eurodollar Advance,
Core Currency Euro Advance or Individual Currency Loan that,
by reason of any changes arising after the Effective Date
affecting the applicable interbank market, adequate and fair
means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of the
Eurodollar Rate, the Core Currency Euro Rate or the
Individual Currency Rate, as the case may be; or
(ii) at any time that such Lender has incurred in-
creased costs or reductions in the amounts received or
receivable hereunder with respect to any Fixed Rate Loan, in
each case by an amount such Lender deems to be material,
63
because of any change since the Effective Date (or in the
case of any Bid Loan, subsequent to acceptance by a Borrower
of such Bid Loan, and in the case of any Negotiated Rate
Loan, subsequent to the date of such Lender's execution of
the Negotiated Rate Confirmation for such Negotiated Rate
Loan) in any law, rule, regulation, order or guideline ap-
plicable to such Lender or the compliance by such Lender
with any request (whether or not having the force of law)
from any Governmental Authority made subsequent to the Ef-
fective Date (or in the case of any Bid Loan, subsequent to
acceptance by a Borrower of such Bid Loan, and, in the case
of any Negotiated Rate Loan, subsequent to the date of such
Lender's execution of the Negotiated Rate Confirmation for
such Negotiated Rate Loan) or in the interpretation or
administration thereof and including the introduction of any
new law, rule, regulation, order, guideline or request, such
as, for example, but not limited to: (A) a change in the ba-
sis of taxation of payment to any Lender of the principal
of or interest on such Fixed Rate Loan or any other amounts
payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the Tax on the Income of such
Lender), or (B) a change in official reserve (including any
marginal, emergency, supplemental, special or other reserve)
or similar requirements (except to the extent included in
the computation of the respective Eurodollar Rate, the Core
Currency Euro Rate, Swing Line Negotiated Rate, Negotiated
Rate, Individual Currency Rate or Bid Rate, as the case may
be), or any special deposit, assessment or similar re-
quirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (or its
Applicable Lending Office); or
(iii) at any time that the making or continuance
of any Fixed Rate Loan has been made (x) unlawful by any
law, rule, regulation or order or (y) impossible by compli-
ance by any Lender in good faith with any governmental
directive or request (whether or not having the force of
law); or
(iv) at any time that any Core Currency (other
than Dollars) or any Non-Core Currency, as the case may be,
is not available in sufficient amounts, as determined in
good faith by the Reference Lender in the case of such Core
Currency, and by the applicable Lender in the case of such
Non-Core Currency, to fund any borrowing of Alternate Cur-
rency Loans in such Core Currency or such Non-Core Currency,
as the case may be;
then, and in any such event, such Lender, in the case of clause
(ii) or (iii) above, or the Administrative Agent, the Reference
Lender or the applicable Lender, as the case may be, in the case
of clause (i) or (iv) above, shall promptly give notice (by
64
telephone confirmed in writing) to the Parent (on behalf of all
Borrowers) and, except for the Administrative Agent, to the
Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (w) in the case of clause (i) above, (A) in
the event that Eurodollar Advances, Core Currency Euro Advances
or Individual Currency Loans are so affected, Eurodollar
Advances, Core Currency Euro Advances or Individual Currency
Loans from such applicable Lender, as the case may be, shall no
longer be available until such time as the Administrative Agent,
the Reference Lender or such applicable Lender, as the case may
be, notifies the Parent and the Lenders that the circumstances
giving rise to such notice by the Administrative Agent, the
Reference Lender or such applicable Lender, as the case may be,
no longer exist, and any Notice of Borrowing or Notice of
Conversion given by any Borrower with respect to Eurodollar
Advances, Core Currency Euro Advances or Individual Currency
Loans to be made by such applicable Lender, as the case may be,
which have not yet been incurred (including by way of conversion)
shall be deemed rescinded by the applicable Borrower and (B) in
the event that any Core Currency Euro Advance or Individual
Currency Loan is so affected, the interest rate for such Core
Currency Euro Advance or such Individual Currency Loan, as the
case may be, shall be determined on the basis provided in the
proviso to the definition of Core Currency Euro Rate or
Individual Currency Rate, as the case may be, (x) in the case of
clause (ii) above, the applicable Borrower shall pay to such
Lender, within 3 days of written demand therefor, such additional
amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in
its reasonable discretion shall determine) as shall be required
to compensate such Lender for such increased costs or reductions
in amounts received or receivable hereunder (a written notice as
to the additional amounts owed to such Lender, showing the basis
for the calculation thereof, submitted to such applicable
Borrower by such Lender in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties
hereto), (y) in the case of clause (iii) above, the applicable
Borrower shall take one of the actions specified in Section
2.14(b) and (z) in the case of clause (iv) above, Core Currency
Euro Advances in the affected Core Currency or Individual
Currency Loans from the applicable Lender in the affected Non-
Core Currency, as the case may be, shall no longer be available
until such time as the Reference Lender or such applicable
Lender, as the case may be, notifies the Parent (on behalf of all
Borrowers), the Administrative Agent and the Lenders that the
circumstances giving rise to the notice referred to above by the
Reference Lender or such applicable Lender, as the case may be,
to the Parent (on behalf of all Borrowers) and the Administrative
Agent no longer exists, and any Notice of Borrowing given by the
affected Borrower with respect to such Core Currency Euro
Advances or such Individual Currency Loans, as the case may be,
65
which have not yet been incurred shall be deemed rescinded by
such affected Borrower. Each of the Administrative Agent, the
Reference Lender and the Lenders agree that if it gives notice to
any Borrower of any of the events described in clause (i), (iii)
or (iv) above, it shall promptly notify the Parent (on behalf of
all Borrowers) and, in the case of any such Lender and the
Reference Lender, the Administrative Agent, if such event ceases
to exist. If any such event described in clause (iii) above with
respect to Eurodollar Advances, Core Currency Euro Advances or
Individual Currency Loans ceases to exist as to a Lender, the
obligations of such Lender, as the case may be, to make Euro-
dollar Advances, Core Currency Euro Advances or Individual
Currency Loans and to convert Eurodollar Advances to new
Eurodollar Advances or convert Core Currency Euro Advances to
new Core Currency Euro Advances on the terms and conditions
contained herein shall be reinstated.
(b) At any time that any Fixed Rate Loan is affected
by the circumstances described in Section 2.14(a)(ii) or (iii),
the applicable Borrower may (and in the case of an affected Fixed
Rate Loan by the circumstances described in Section 2.14(a)(iii)
shall) either (x) if the affected Fixed Rate Loan is then being
made initially or pursuant to a conversion, cancel the respective
borrowing or conversion by giving the Administrative Agent
telephonic notice (confirmed in writing) on the same date that
the Parent was notified by the affected Lender or the
Administrative Agent pursuant to Section 2.14(a)(ii) or (iii) or
(y) if the affected Fixed Rate Loan is then outstanding, upon at
least three Business Days' written notice to the Administrative
Agent and the affected Lender, (A) in the case of a Eurodollar
Advance, require the affected Lender to convert such Eurodollar
Advance into an ABR Advance as of the end of the Interest Period
then applicable to such Eurodollar Advance or, if earlier, as
soon as practicable within the time required by law and (B) in
the case of a Core Currency Euro Advance, Swing Line Negotiated
Rate Advance, Negotiated Rate Loan, Individual Currency Loan or
Bid Loan, take such action as the affected Lender may reasonably
request with a view to minimizing the obligations of such Bor-
rower under Section 2.15.
(c) If any Lender determines that after the Effective
Date the introduction of or any change in any applicable law,
rule, regulation, order, guideline, directive or compliance by
such Lender or any corporation controlling such Lender with any
request (whether or not having the force of law) from any
Governmental Authority concerning capital adequacy, or any change
in interpretation or administration thereof by any Governmental
Authority, in each case made subsequent to the date hereof, will
have the effect of reducing the rate of return on the capital
required to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's
Commitment or Individual Currency Commitments hereunder or its
66
obligations under the Loan Documents to a level below that which
such Lender or such corporation could have achieved but for such
application or compliance (taking into account such Lender's or
such corporation's policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, then each of the
Borrowers to the extent of its Proportionate Share and the Parent
severally agrees to pay such to such Lender, within 3 Business
Days of its written demand therefor, such additional amounts as
shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender
or such other corporation as a result of such reduction. In de-
termining such additional amounts, each Lender will act reason-
ably and in good faith and will use averaging and attribution
methods which are reasonable, provided that such Lender's rea-
sonable good faith determination of compensation owing under this
Section 2.14(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Lender,
upon determining that any additional amounts will be payable
pursuant to this Section 2.14(c), will give prompt written notice
thereof to the Parent (on behalf of all Borrowers), which notice
shall show the basis for calculation of such additional amounts.
(d) Each Lender shall notify the Parent (on behalf of
all Borrowers) of any event occurring after the Effective Date
entitling such Lender to compensation under this Section 2.14 as
promptly as practicable, but in any event within 120 days after
the officer having primary responsibility for this Agreement
obtains actual knowledge thereof, provided that no such notice
shall be required if such Lender has determined not to seek
compensation under this Section 2.14 as a result of such event.
Each Lender will furnish to each Borrower a certificate setting
forth the basis and amount of each request by such Lender for
compensation under this Section 2.14. Determinations and
allocations by any Lender for purposes of this Section 2.14 on
its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in
respect of Loans, and of the amounts required to compensate such
Lender under this Section 2.14 shall be prima facie evidence of
such determinations and allocations.
(e) Notwithstanding the foregoing, no Lender shall be
entitled to any compensation described in Section 2.14 unless, at
the time it requests such compensation, it is the policy or
general practice of such Lender to request compensation for
comparable costs in similar circumstances under comparable
provisions of other credit agreements for comparable customers
unless specific facts or circumstances applicable to any Borrower
or the transactions contemplated by the Loan Documents would
alter such policy or general practice, provided that nothing in
this Section 2.14(e) shall preclude a Lender from waiving the
collection of similar costs from one or more of its other
67
customers.
(f) If any Lender fails to give the notice described
in Section 2.14(d) within 90 days after it obtains such actual
knowledge of the event required to be described in such notice,
such Lender shall, with respect to any compensation that would
otherwise be owing to such Lender under this Section 2.14, only
be entitled to payment for increased costs incurred from and
after the date that such Lender does give such notice.
O. Compensation
Each Borrower shall compensate each Lender, within 3
days of its written demand therefor (which demand shall set forth
the basis for requesting such compensation), for all reasonable
losses, expenses and liabilities, including any loss, expense or
liability (including those related to currency exchange) incurred
by reason of the liquidation or reemployment of deposits or other
funds required by such Lender to fund its Fixed Rate Loans but
excluding any loss of anticipated profit which such Lender may
sustain: (i) if for any reason, a borrowing of, or conversion
from or into a Fixed Rate Loan does not occur on a date specified
therefor in a Notice of Borrowing, a Notice of Conversion, a
Negotiated Rate Confirmation or a Bid accepted by a Borrower;
(ii) if any repayment (including any repayment made pursuant to
Section 2.10 or as a result of an acceleration of the Loans pur-
suant to Section 9) or conversion of any of such Borrower's Fixed
Rate Loans occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment of
any of such Borrower's Fixed Rate Loans is not made on any date
specified in a notice of prepayment given by such Borrower; or
(iv) as a consequence of (x) any other default by such Borrower
to repay its Loans when required by the terms of this Agreement
or (y) any election made pursuant to Section 2.14(b) or 11.1(b).
P. Change of Applicable Lending Office and Applicable
Payment Office
(a) With respect to any Loan of any Lender or any
Letter of Credit, such Lender agrees that on the occurrence of
any event giving rise to the operation of Section 2.13, Section
2.14(a)(ii) or (iii), Section 2.14(c), Section 2.14(d) or Section
2.22 with respect to such Loan or such Letter of Credit, it will,
if requested by the applicable Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to
designate another Applicable Lending Office or Applicable Payment
Office, as the case may be, for such Loan or such Letter of
Credit affected by such event, provided that such designation is
made on such terms that such Lender and its Applicable Lending
Office or Applicable Payment Office, as the case may be, suffer
no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the op-
68
eration of such Section. Nothing in this Section shall affect or
postpone any of the obligations of any Borrower or the right of
any Lender provided in Sections 2.13, 2.14, 2.15 and 2.22.
(b) Each Lender shall have the right at any time and
from time to time to transfer any of its Loans to a different
office, provided that such Lender shall promptly notify the
Administrative Agent and the Parent (on behalf of all Borrowers)
of any such change of office. Such office shall thereupon become
such Lender's Applicable Lending Office for such Loan provided,
however, that no such Lender shall be entitled to receive any
greater amount under Section 2.13, Section 2.14(a)(ii) or (iii),
Section 2.14(c) or Section 2.22 as a result of a transfer of any
such Loans to a different office of such Lender than it would be
entitled to immediately prior thereto unless such claim would
have arisen even if such transfer had not occurred.
Q. Survival of Certain Obligations
The obligations of the Borrowers under Sections 2.13,
2.14, 2.15, 2.22, 11.5 and 11.10 shall survive the termination of
the Aggregate Commitments, the Swing Line Commitment, the
Individual Currency Commitments, the Letter of Credit Commitment
the payment of the Loans, the reimbursement obligations in re-
spect of the Letters of Credit and all other amounts payable
under the Loan Documents.
R. Use of Proceeds
The proceeds of the Loans shall be used to refinance
the Indebtedness set forth on Schedule 5.8 and for general
corporate purposes of the Parent and its Subsidiaries. The uses
to which the proceeds of the Loans are put shall conform with the
provisions of Section 4.11.
S. Letter of Credit Sub-Facility
(a) Subject to the terms and conditions of this
Agreement, the Issuing Bank agrees, in reliance on the agreement
of the other Lenders set forth in Section 2.20, to issue standby
letters of credit in Core Currencies (the "Letters of Credit";
each a "Letter of Credit") during the Commitment Period for the
account of one or more of the Letter of Credit Applicants,
provided, however, that, at the request of any Letter of Credit
Applicant, the Issuing Bank may, in its sole discretion, issue
one or more Letters of Credit for the account of such Letter of
Credit Applicant in one or more Non-Core Currencies. The Letter
of Credit Exposure at any one time outstanding shall not exceed
the lesser of (i) the amount of the Letter of Credit Commitment
and (ii) the excess, if any, of the sum of the Aggregate Com-
mitments over the sum of the aggregate outstanding principal
amount of all Loans (determined on the basis of the Dollar
69
Equivalent for each outstanding Alternate Currency Loan). The
Letter of Credit Exposure at any one time outstanding attribut-
able to all Letters of Credit issued in Non-Core Currencies shall
not exceed the excess, if any, of $60,000,000 over the Aggregate
Credit Exposure at such time attributable to all Loans designated
in Non-Core Currencies. The sum of the aggregate principal
amount of the Individual Currency Loans of all Lenders at any one
time outstanding in any Non-Core Currency and the Letter of
Credit Exposure at such time attributable to all Letters of
Credit issued in such Non-Core Currency (determined on the basis
of the Dollar Equivalent of each such Individual Currency Loan
and each such Letter of Credit) shall not exceed $5,000,000.
Each Letter of Credit shall have an expiration date which shall
not exceed the earlier of (x) twelve months from the date of
issuance thereof and (y) 30 days immediately preceding the Matu-
rity Date. No Letter of Credit shall be issued, and no amendment
to any Letter of Credit shall be issued which would increase the
stated amount or extend the expiration date of such Letter of
Credit, (i) if the Administrative Agent or any Lender by notice
to the Administrative Agent and the applicable Letter of Credit
Applicant and the Parent no later than 1:00 P.M. one Business Day
prior to the requested date of issuance of such Letter of Credit
or amendment, shall have determined that any of the applicable
conditions set forth in Sections 5 and 6 have not been satisfied
and such conditions remain unsatisfied as of the requested time
of issuing such Letter of Credit or amendment or (ii) to the
extent that immediately after giving effect thereto the Aggregate
Credit Exposure would exceed the Aggregate Commitments (each a
"Non-Issuance Event").
(b) Each Letter of Credit shall be issued for the
account of the applicable Letter of Credit Applicant for general
corporate purposes of such Letter of Credit Applicant and its
Subsidiaries. Such Letter of Credit Applicant and the Parent
shall give the Administrative Agent a Letter of Credit Request
for the issuance of such Letter of Credit by 11:00 A.M. three
Business Days prior to the requested date of issuance. Such
Letter of Credit Request shall be executed by such Letter of
Credit Applicant and the Parent, and shall specify (i) the
beneficiary of such Letter of Credit and the obligations of such
Letter of Credit Applicant or any of its Subsidiaries, as the
case may be, in respect of which such Letter of Credit is to be
issued, (ii) such Letter of Credit Applicant's proposal as to the
conditions under which a drawing may be made under such Letter of
Credit and the documentation to be required in respect thereof,
(iii) the maximum amount to be available under such Letter of
Credit, (iv) the requested date of issuance and (v) the
applicable Currency. Upon receipt of such Letter of Credit Re-
quest from such Letter of Credit Applicant and the Parent, the
Administrative Agent shall promptly notify the Issuing Bank and
each other Lender thereof. Each Letter of Credit shall be in
form and substance reasonably satisfactory to the Issuing Bank,
70
and adequate and fair means in the sole discretion of the Issuing
Bank shall exist for the issuance thereof, with such provisions
with respect to the conditions under which a drawing may be made
thereunder and the documentation required in respect of such
drawing as the Issuing Bank shall reasonably require and as may
be acceptable to such Letter of Credit Applicant and the Parent.
Such Letter of Credit shall be used solely for the purposes de-
scribed therein and herein. The Issuing Bank shall, on the pro-
posed date of issuance and subject to the other terms and con-
ditions of this Agreement, issue such Letter of Credit.
(c) Each payment by the Issuing Bank of a draft drawn
under a Letter of Credit designated in a Core Currency shall give
rise to an obligation on the part of the applicable Letter of
Credit Applicant to reimburse the Issuing Bank immediately for
the amount thereof at its Applicable Payment Office in such Core
Currency.
(d) Each payment by the Issuing Bank of a draft drawn
under a Letter of Credit designated in a Non-Core Currency shall
give rise to an obligation on the part of the applicable Letter
of Credit Applicant to reimburse the Issuing Bank immediately for
the amount thereof in Dollars, at such office as the Issuing Bank
shall designate to the Administrative Agent, the Parent and such
Letter of Credit Applicant, in an amount based upon the all-in
cost of funds in Dollars of the Issuing Bank to fund such draft
(each a "Dollar Reimbursement Amount"). In connection with each
obligation of a Letter of Credit Applicant to pay a Dollar Reim-
bursement Amount under this Section 2.19(d), the Issuing Bank
shall deliver to such Letter of Credit Applicant, the Parent and
the Administrative Agent a written statement setting forth such
Dollar Reimbursement Amount. The Issuing Bank's determination of
such Dollar Reimbursement Amount shall be conclusive absent
manifest error.
T. Letter of Credit Participation and Funding Commitments
(a) Each Lender hereby unconditionally and ir-
revocably, severally for itself only and without any notice to or
the taking of any action by such Lender, takes from time to time
an undivided participating interest in the obligations of the
Issuing Bank under and in connection with each Letter of Credit
in an amount equal to such Lender's Availability Percentage at
such time of the amount of such Letter of Credit. Each Lender
from time to time shall be liable to the Issuing Bank for its
Availability Percentage at such time of the unreimbursed amount
of any draft drawn and honored under each Letter of Credit. Each
Lender from time to time shall also be liable for an amount equal
to the product of its Availability Percentage at such time and
any amounts paid by the applicable Letter of Credit Applicant
pursuant to Section 2.21 that are subsequently rescinded or
avoided, or must otherwise be restored or returned. Such li-
71
abilities shall be unconditional and without regard to the
occurrence of any Default or Event of Default or the compliance
by the Parent and the Borrowers with any of their respective
obligations under the Loan Documents or any other circumstances.
(b) The Administrative Agent will promptly notify each
Lender (which notice shall be promptly confirmed in writing) of
the date and the amount of any draft presented under any Letter
of Credit with respect to which full reimbursement of payment is
not made by the applicable Letter of Credit Applicant as provided
in Sections 2.19(c) or 2.19(d), as the case may be, and forthwith
upon receipt of such notice, and provided that no Non-Issuance
Event shall have occurred and be continuing with respect to such
Letter of Credit, such Lender (other than the Issuing Bank in its
capacity as a Lender) shall make available to the Administrative
Agent for the account of the Issuing Bank its Availability Per-
centage at such time of the amount of such unreimbursed draft or,
if such Letter of Credit is designated in a Non-Core Currency,
the applicable Dollar Reimbursement Amount, at the Applicable
Payment Office of the Administrative Agent in the applicable Core
Currency or, if such Letter of Credit is designated in a Non-Core
Currency, at the applicable office designated by the Administra-
tive Agent pursuant to Section 2.19(d) in Dollars, and, in each
case, in immediately available funds. The Administrative Agent
shall distribute the payments made by each Lender (other than the
Issuing Bank in its capacity as a Lender) pursuant to the
immediately preceding sentence to the Issuing Bank promptly upon
receipt thereof in like funds as received. Each Lender shall
indemnify and hold harmless the Administrative Agent and the
Issuing Bank from and against any and all losses, liabilities
(including liabilities for penalties), actions, suits, judgments,
demands, costs and expenses (including reasonable attorneys' fees
and expenses) resulting from any failure on the part of such
Lender to provide, or from any delay in providing, the
Administrative Agent with such Lender's Availability Percentage
of the amount of any payment made by the Issuing Bank under a
Letter of Credit in accordance with this clause (b) above (except
in respect of losses, liabilities or other obligations suffered
by the Issuing Bank resulting from the gross negligence or
willful misconduct of the Issuing Bank or the Administrative
Agent, as the case may be). If a Lender does not make available
to the Administrative Agent when due such Lender's Availability
Percentage at such time of any unreimbursed payment made by the
Issuing Bank under a Letter of Credit (other than payments made
by the Issuing Bank by reason of its gross negligence or willful
misconduct), such Lender shall be required to pay interest to the
Administrative Agent for the account of the Issuing Bank on such
Lender's Availability Percentage at such time of such payment at
a rate of interest per annum equal to the Federal Funds Rate (or,
in the case of any Letter of Credit designated in a Core Currency
(other than Dollars), at a rate based upon the all-in cost of
funds for the applicable Non-Core Currency) from the date such
72
Lender's payment is due until the date such payment is received
by the Administrative Agent. The Administrative Agent shall
distribute such interest payments to the Issuing Bank upon
receipt thereof in like funds as received.
(c) Whenever the Administrative Agent or the Issuing
Bank is reimbursed by any Letter of Credit Applicant, for the
account of the Issuing Bank, for any payment under a Letter of
Credit and such payment relates to an amount previously paid by a
Lender in respect of its Availability Percentage of the amount of
such payment under such Letter of Credit, the Administrative
Agent or the Issuing Bank, as the case may be, will promptly pay
over such payment to such Lender.
U. Absolute Obligation with respect to Letter of Credit
Payments
The obligation of each Letter of Credit Applicant to
reimburse the Administrative Agent for the account of the Issuing
Bank in respect of each Letter of Credit issued for the account
of such Letter of Credit Applicant for each payment under or in
respect of such Letter of Credit shall be absolute and un-
conditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which such Letter
of Credit Applicant or any of its Subsidiaries may have or have
had against the beneficiary of such Letter of Credit, the
Administrative Agent, the Issuing Bank, as issuer of such Letter
of Credit, any Lender, the Swing Line Lender or any other Person,
including any defense based on the failure of any drawing to
conform to the terms of such Letter of Credit, any drawing
document proving to be forged, fraudulent or invalid, or the
legality, validity, regularity or enforceability of such Letter
of Credit.
V. Increased Costs Based on Letters of Credit
Without limiting the provisions of Section 2.14, if any
law, rule, regulation, order, guideline or request or any change
in the interpretation or application thereof by any Governmental
Authority charged with the administration thereof or GAAP shall
either (a) impose, modify or make applicable any reserve, special
deposit, assessment or similar requirement against any Letter of
Credit issued or participated in by any Lender, or (b) impose on
the Administrative Agent, the Issuing Bank or such Lender, as
the case may be, any other condition regarding such Letter of
Credit (except for imposition of, or changes in the rate of, the
Tax on the Income of the Administrative Agent, the Issuing Bank
or such Lender, as the case may be) and the result of any event
referred to in clause (a) or (b) above shall be to increase the
cost to the Issuing Bank (or any successor thereto as issuer of
such Letter of Credit) of issuing or maintaining such Letter of
Credit or the cost to any Lender of its obligations pursuant to
73
Section 2.20, or the cost to the Administrative Agent of perform-
ing its functions hereunder with respect to such Letter of
Credit, in any case by an amount which the Administrative Agent,
the Issuing Bank or such Lender, as the case may be, deems mate-
rial, then, upon demand by the Administrative Agent, the Issuing
Bank or such Lender, as the case may be, the applicable Letter of
Credit Applicant shall immediately pay to the Administrative
Agent, the Issuing Bank or such Lender, as the case may be, from
time to time as specified by the Administrative Agent, the
Issuing Bank or such Lender, as the case may be, additional
amounts which shall be sufficient to compensate the
Administrative Agent, the Issuing Bank or such Lender, as the
case may be, for such increased cost. A statement in reasonable
detail as to such increased cost incurred by the Administrative
Agent, the Issuing Bank or such Lender, as the case may be, as a
result of any event mentioned in clauses (a) or (b) above, sub-
mitted by the Administrative Agent, the Issuing Bank or such
Lender, as the case may be, to such Letter of Credit Applicant
shall be conclusive, absent manifest error, as to the amount
thereof.
W. Borrower Addenda
Provided that no Default or Event of Default has
occurred and is continuing, the Parent may direct that any of its
wholly-owned Subsidiaries which is not then a Borrower become a
Borrower by submitting a Borrower Addendum to the Administrative
Agent with respect to such Subsidiary duly executed by each of
the Parent and such Subsidiary together with a certificate, dated
the date of such Borrower Addendum of the Secretary or Assistant
Secretary of such Subsidiary (i) attaching a true and complete
copy of the resolutions of its Board of Directors and of all
documents evidencing other necessary corporate action (in form
and substance satisfactory to the Administrative Agent) taken by
it to authorize such Borrower Addendum, the Loan Documents and
the transactions contemplated thereby, (ii) attaching a true and
complete copy of its certificate of incorporation, by-laws or
other organizational documents, (iii) setting forth the incum-
bency of its officer or officers who may sign the Borrower
Addendum, including therein a signature specimen of such officer
or officers, (iv) an opinion of foreign local counsel to such
Subsidiary in all respects reasonably satisfactory to the Admin-
istrative Agent and (v) attaching a certificate of good standing
(or equivalent) issued by the jurisdiction of its incorporation.
If any such document is not in English, such document shall be
accompanied by a certified English translation thereof. Upon
receipt of a Borrower Addendum and the supporting documentation
referred to above, the Administrative Agent shall confirm such
Borrower Addendum by signing a copy thereof and shall deliver a
copy thereof to the Parent and each Lender. Thereupon the
Subsidiary which executed such Borrower Addendum shall become a
"Borrower" hereunder. In the event that such additional Borrower
74
is not a corporation organized under the laws of a jurisdiction
in which any other Borrower is organized (and whose principal
office is not located in a jurisdiction in which any other
Borrower's principal office is located), this Agreement and the
other Loan Documents will be deemed amended by adding definitions
comparable to the definitions applicable to each other Subsidiary
Borrower, such definitions to be as set forth in the applicable
Borrower Addendum.
X. Records
(a) Lender's Records. Each Lender will note on its
internal records with respect to each Loan made by it (i) the
date and amount of such Loan, (ii) whether such Loan is a Re-
volving Loan, Swing Line Loan, Individual Currency Loan, Nego-
tiated Rate Loan or Bid Loan, (iii) the identity of the Borrower
to whom such Loan was made, (iv) the interest rate (other than in
the case of an ABR Advance), Individual Currency Rate, Negotiated
Rate or Bid Rate and Interest Period, if applicable, applicable
to such Loan and (v) each payment and prepayment of the principal
thereof.
(b) Administrative Agent's Records. The Administrative
Agent shall keep records regarding the Loans, the Letters of
Credit and this Agreement in accordance with its customary
procedures for agented credits.
(c) Prima Facie Evidence. The entries made in the
records maintained pursuant to subsections (a) and (b) above
shall, to the extent not prohibited by applicable law, be prima
facie evidence of the existence and amount of the obligations of
the Parent and each Borrower recorded therein; provided, however,
that the failure of the Administrative Agent or any Lender, as
the case may be, to make any notation on its records shall not
affect the Parent's or the respective Borrower's obligations in
respect of the Loans, the Letters of Credit or the Loan
Documents.
Y. Replacement of Lender
If (i) any Borrower is obligated to pay to any Lender
any amount under Section 2.13(a), (b) or (c) and such payment is
attributable solely to any change since the Effective Date (in
the case of each Lender listed on the signature pages hereof) or
since the effective date of the Assignment and Acceptance
Agreement pursuant to which it became a Lender (in the case of
each other Lender) in any applicable law, rule, regulation,
order, directive, treaty or guideline (whether or not having the
force of law) or in the interpretation or administration thereof
(including the introduction of any new law, rule, regulation,
order, directive, treaty or guideline), (ii) any Lender shall
have failed to make available a Loan on the date on which and in
75
the amount in which it was obligated to do so and shall not have
cured such failure within three Business Days or (iii) any Lender
shall have demanded any payment under Section 2.14 or excused
itself from funding a Loan pursuant to Section 2.14, the Company
shall have the right, in accordance with the requirements of
Section 11.7(b), if no Default or Event of Default shall exist to
replace up to two such Lenders (each a "Replaced Lender") with
one or more other assignees (each, a "Replacement Lender"),
reasonably acceptable to the Swing Line Lender and the Issuing
Bank, provided that (I) at the time of any replacement pursuant
to this Section, the Replacement Lender shall enter into one or
more Assignment and Acceptance Agreements pursuant to Section
11.7(b) (with the Assignment Fee payable pursuant to said Section
11.7(b) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and in each case participations in Letters
of Credit by, the Replaced Lender and, in connection therewith,
shall pay to (w) the Replaced Lender in respect thereof an amount
equal to the sum of (A) an amount equal to the principal of, and
all accrued interest on, all outstanding Loans of the Replaced
Lender, (B) an amount equal to all drawings on all Letters of
Credit that have been funded by (and not reimbursed to) such
Replaced Lender, together with all then unpaid interest with
respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, fees owing to the Replaced
Lender pursuant to Sections 3.1 and 3.2, (x) the Issuing Bank an
amount equal to such Replaced Lender's Commitment Percentage of
all drawings (which at such time remains an unpaid drawing) to
the extent such amount was not theretofore funded by such
Replaced Lender, (y) the Swing Line Lender an amount equal to
such Replaced Lender's Commitment Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by
such Replaced Lender and (z) the Administrative Agent an amount
equal to all amounts owed by such Replaced Lender to the
Administrative Agent under this Agreement, including, without
limitation, an amount equal to the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, a
corresponding amount of which was made available by the
Administrative Agent to the applicable Borrower(s) pursuant to
Section 2.4(e) and which has not been repaid to the
Administrative Agent by such Replaced Lender or the applicable
Borrower(s) and (II) all obligations of the Borrowers owing to
the Replaced Lender (other than those specifically described in
clause (I) above in respect of which the assignment purchase
price has been, or is concurrently being, paid) shall be paid in
full to such Replaced Lender concurrently with such replacement.
Upon the execution of the respective Assignment and Acceptance
Agreements and the payment of amounts referred to in clauses (i)
and (ii) of this Section 2.25, the Replacement Lender shall
become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to in-
demnification provisions under this Agreement (including, without
76
limitation, Sections 2.13, 2.14, 2.15, 2.22, 11.5 and 11.10),
which shall survive as to such Replaced Lender.
III. FEES
A. Facility Fee
The Parent agrees to pay to the Administrative Agent,
for the account of the Lenders in accordance with each Lender's
Commitment Percentage, a fee (the "Facility Fee"), for each day
from and after the Effective Date, equal to the product of (x)
the Aggregate Commitments in effect as at the end of such day or,
if no Commitments then exist, the Aggregate Commitments on the
last day on which Commitments did exist, and (y) the applicable
percentage set forth below based upon the Pricing Level in effect
as at the end of such day:
Pricing Level Facility Fee Percentage
---------------- -----------------------
Pricing Level I 0.1000%
Pricing Level II 0.1500
Pricing Level III 0.1750
Pricing Level IV 0.2000
Pricing Level V 0.3000.
The Facility Fee shall be (i) calculated on the basis of a
360-day year for the actual number of days elapsed, (ii) payable
quarterly in arrears on each Quarterly Payment Date, commencing
on the first such day following the Effective Date, and on the
date that the Aggregate Commitments shall expire or otherwise
terminate (or in the event that the Aggregate Commitments have
expired or otherwise terminated, on the date that the Aggregate
Credit Exposure has been reduced to $0).
B. Letter of Credit Commissions
The Parent agrees to pay to the Administrative Agent,
for the account of the Lenders, commissions (the "Letter of
Credit Commissions") with respect to the issued and outstanding
Letters of Credit, for each day from and after the Effective
Date, equal to, with respect to each Lender, the product of (x)
the Letter of Credit Exposure as at the end of such day and (y)
the Availability Percentage of such Lender as at the end of such
day multiplied by (z) the applicable percentage set forth below
based upon the Pricing Level in effect as at the end of such day:
77
Letter of Credit
Pricing Level Commission Percentage
------------------ -----------------------
Pricing Level I 0.2000%
Pricing Level II 0.2700%
Pricing Level III 0.2750%
Pricing Level IV 0.4000%
Pricing Level V 0.4000%
The Letter of Credit Commissions shall be (i) calculated on
the basis of a 360-day year for the actual number of days
elapsed, (ii) payable quarterly in arrears on each Quarterly
Payment Date and on the date that the Letter of Credit Commit-
ments shall expire and the Letter of Credit Exposure is $0, and
(iii) nonrefundable.
C. Administrative Agent's and Issuing Bank's Fees
(a) The Parent agrees to pay to the Administrative
Agent, for its own account, such other fees as have been agreed
to in writing from time to time by the Parent and the
Administrative Agent.
(b) The Parent agrees to pay to the Issuing Bank, for
its own account, such other fees as have been agreed to in
writing from time to time by the Parent and the Issuing Bank.
IV. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and
the Lenders to enter into this Agreement and to make the Loans,
the Swing Line Lender to make the Swing Line Loans and the
Lenders to participate therein, and the Issuing Bank to issue
the Letters of Credit and the Lenders to participate therein, the
Parent and the Borrowers make the following representations and
warranties to the Administrative Agent, the Issuing Bank, the
Swing Line Lender and the Lenders:
A. Subsidiaries; Capital Stock
As of the date of this Agreement, the
Parent has only the Subsidiaries set forth on, and the autho-
rized, issued and outstanding capital stock of the Parent and
each such Subsidiary (or partnership or other interests, as the
case may be) is as set forth on, Schedule 4.1. The shares of, or
partnership or other interests in, each Subsidiary of the Parent
are owned beneficially and of record by the Parent or another
78
Subsidiary of the Parent, are free and clear of all Liens except
as otherwise permitted by Section 8.3, and are duly authorized,
validly issued, fully paid and nonassessable except, in the case
of any Subsidiary organized under the laws of the State of New
York, for any liability that may arise under the provisions of
Section 630 of the Business Corporation Law of the State of New
York. As of the date of this Agreement, except as set forth on
Schedule 4.1, (a) neither the Parent nor any of its Subsidiaries
has issued any securities convertible into, or options or war-
rants for, any common or preferred equity securities thereof, (b)
there are no agreements, voting trusts or understandings binding
upon the Parent or any of its Subsidiaries with respect to the
voting securities of the Parent or any of its Subsidiaries or
affecting in any manner the sale, pledge, assignment or other
disposition thereof, including any right of first refusal, op-
tion, redemption, call or other right with respect thereto,
whether similar or dissimilar to any of the foregoing, and (c)
the Parent owns, directly or indirectly, all of the outstanding
capital stock of each of its Subsidiaries.
B. Existence and Power
Each of the Parent and each of its
Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation, has
all requisite power and authority to own its Property and to
carry on its business as now conducted, and is in good standing
and authorized to do business in each jurisdiction in which the
failure so to qualify could reasonably be expected to have a
Material Adverse effect.
C. Authority
Each of the Parent and each of its
Subsidiaries has full power and authority to enter into, execute,
deliver and perform the terms of the Loan Documents to which it
is a party, all of which have been duly authorized by all proper
and necessary corporate or partnership action, as the case may
be, and are in full compliance with its certificate of incorpora-
tion and by-laws or partnership agreement, as the case may be.
No consent or approval of, or other action by, shareholders of
the Parent, any Borrower, any Governmental Authority or any other
Person, which has not already been obtained, is required to
authorize in respect of the Parent or any of its Subsidiaries, or
is required in connection with the execution, delivery and per-
formance by the Parent and each of its Subsidiaries of, the Loan
Documents to which it is a party, or is required as a condition
to the enforceability against the Parent or such Subsidiary of
the Loan Documents to which it is a party.
D. Binding Agreement
79
The Loan Documents constitute the valid
and legally binding obligations of the Parent and each of its
Subsidiaries to the extent the Parent or such Subsidiary, as the
case may be, is a party thereto, enforceable in accordance with
their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by equitable principles relating
to the availability of specific performance as a remedy and
except to the extent that indemnification obligations may be
limited by federal or state securities laws or public policy
relating thereto.
E. Litigation
Except as set forth on Schedule 4.5, there
are no actions, suits, arbitration proceedings or claims (whether
purportedly on behalf of the Parent, any of its Subsidiaries or
otherwise) pending or, to the knowledge of the Parent and the
Borrowers, threatened against the Parent or any of its Sub-
sidiaries, or maintained by the Parent or any of its Subsid-
iaries, or which may affect the Property of the Parent or any of
its Subsidiaries, at law or in equity, before any Governmental
Authority which could reasonably be expected to have a Material
Adverse effect. There are no proceedings pending or, to the
knowledge of the Parent and the Borrowers, threatened against the
Parent or any of its Subsidiaries (a) which call into question
the validity or enforceability of, or otherwise seek to
invalidate any Loan Document, or (b) which might, individually or
in the aggregate, materially and adversely affect any of the
transactions contemplated by any Loan Document.
F. No Conflicting Agreements
(a) Neither the Parent nor any of its
Subsidiaries is in default under any agreement to which it is a
party or by which it or any of its Property is bound the effect
of which could reasonably be expected to have a Material Adverse
effect. No notice to, or filing with, any Governmental Authority
is required for the due execution, delivery and performance by
the Parent or any of its Subsidiaries of the Loan Documents to
which it is a party (except those notices or filings which have
already been made).
(b) No provision of any statute, rule,
regulation, judgment, decree or order, or any existing material
mortgage, indenture, contract or agreement, in each case binding
on the Parent or any of its Subsidiaries or affecting the
Property of the Parent or any of its Subsidiaries conflicts with,
or requires any consent which has not already been obtained
under, or would in any way prohibit the execution, delivery or
performance by the Parent or any of its Subsidiaries of the terms
80
of, any Loan Document. The execution, delivery or performance by
the Parent and each of its Subsidiaries of the terms of each Loan
Document to which it is a party will not constitute a default
under, or result in the creation or imposition of, or obligation
to create, any Lien upon the Property of the Parent or any of its
Subsidiaries pursuant to the terms of any such mortgage, in-
denture, contract or agreement which defaults or Liens,
individually or in the aggregate, would have or result in a
Material Adverse effect.
G. Taxes
The Parent and each of its Subsidiaries
has filed or caused to be filed all tax returns, and has paid, or
has made adequate provision for the payment of, all taxes shown
to be due and payable on said returns or in any assessments made
against them, the failure of which to file or pay could rea-
sonably be expected to have a Material Adverse effect, and no tax
Liens have been filed against the Parent or any of its
Subsidiaries and no claims are being asserted with respect to
such taxes which are required by GAAP (as in effect on the Effec-
tive Date) to be reflected in the Financial Statements and are
not so reflected therein. The charges, accruals and reserves on
the books of the Parent and each of its Subsidiaries with respect
to all Federal, state, local, foreign and other taxes are con-
sidered by the management of the Parent and the Borrowers to be
adequate, and neither the Parent nor any Borrower knows of any
unpaid assessment which is or might be due and payable against it
or any of its Subsidiaries or any Property of the Parent or any
of its Subsidiaries, except such thereof as are being contested
in good faith and by appropriate proceedings diligently
conducted, and for which adequate reserves have been set aside in
accordance with GAAP.
H. Compliance with Applicable Laws; Filings
Neither the Parent nor any of its
Subsidiaries is in default with respect to any judgment, order,
writ, injunction, decree or decision of any Governmental
Authority which default could reasonably be expected to have a
Material Adverse effect. The Parent and each of its Subsidiaries
is complying with all applicable statutes, rules and regulations
of all Governmental Authorities, a violation of which could rea-
sonably be expected to have a Material Adverse effect. The
Parent and each of its Subsidiaries has filed or caused to be
filed with all Governmental Authorities all reports, applica-
tions, documents, instruments and information required to be
filed pursuant to all applicable laws, rules, regulations and re-
quests which, if not so filed, could reasonably be expected to
have a Material Adverse effect. Each Borrower, prior to each
borrowing by it hereunder in any jurisdiction, has obtained all
necessary approvals and consents of, and has filed or caused to
81
be filed all reports, applications, documents, instruments and
information required to be filed pursuant to all applicable laws,
rules, regulations and requests of, all Governmental Authorities
in connection with such borrowing in such jurisdiction.
I. Governmental Regulations
Neither the Parent nor any of its
Subsidiaries nor any corporation controlling the Parent or any of
its Subsidiaries or under common control with the Parent or any
of its Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, in each case as amended, or is
subject to any statute or regulation which regulates the in-
currence of Indebtedness, including statutes or regulations rela-
tive to common or contract carriers or to the sale of elec-
tricity, gas, steam, water, telephone, telegraph or other public
utility services.
J. Property
Each of the Parent and each of its
Subsidiaries has good and marketable title to, or a valid lease-
hold interest in, all of its real Property, and is the owner of,
or has a valid lease of, all personal property, in each case
which is material to the Parent and its Subsidiaries taken as a
whole, subject to no Liens, except such Liens permitted by
Section 8.3. All leases of Property to each of the Parent and
each of its Subsidiaries are in full force and effect, the Parent
or such Subsidiary enjoys quiet and undisturbed possession under
all leases of real property and neither the Parent nor any of its
Subsidiaries is in default beyond any applicable grace period of
any provision thereof, the effect of which could reasonably be
expected to have a Material Adverse effect.
K. Federal Reserve Regulations; Use of Loan
Proceeds
Neither the Parent nor any of its
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose
of purchasing or carrying any Margin Stock. No part of the
proceeds of the Loans or any Letter of Credit will be used,
directly or indirectly, for a purpose which violates the
provisions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, as amended. Anything in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Parent or any of its
Subsidiaries in violation of any limitation or prohibition
provided by any applicable law, regulation or statute, including
Regulation U of the Board of Governors of the Federal Reserve
System.
82
L. No Misrepresentation
No representation or warranty contained in
any Loan Document and no certificate, Financial Statement, other
financial statement or written notice furnished or to be
furnished by the Parents or any of its Subsidiaries in connection
with the transactions contemplated hereby, contains or will con-
tain, as of its date, a misstatement of material fact, or omits
or will omit to state, as of its date, a material fact required
to be stated in order to make the statements therein contained
not misleading in the light of the circumstances under which
made.
M. Plans
(a) Each Employee Benefit Plan of the
Parent, each of its Subsidiaries and each ERISA Affiliate is in
compliance with ERISA and the Code, where applicable, in all
material respects. The amount of (a) all Unfunded Pension
Liabilities under the Pension Plans, excluding any Pension Plan
which is a Multiemployer Plan, does not exceed $2,000,000, and
(b) the aggregate Unrecognized Retiree Welfare Liability under
all applicable Employee Benefit Plans does not exceed $2,000,000.
The Parent, each of its Subsidiaries and each ERISA Affiliate
have complied with the requirements of Section 515 of ERISA with
respect to each Pension Plan which is a Multiemployer Plan. The
aggregate potential annual withdrawal liability payments, as
determined in accordance with Title IV of ERISA, for which the
Parent, each of its Subsidiaries and each ERISA Affiliate would
become obligated in the event of a complete or partial with-
drawal from all Pension Plans which are Multiemployer Plans does
not exceed $2,000,000. The Parent, each of its Subsidiaries and
each ERISA Affiliate has made all contributions or payments to or
under each such Pension Plan required by law or the terms of such
Pension Plan or any contract or agreement where the failure to
make such contributions or payments could reasonably be expected
to have a Material Adverse effect. No liability to the PBGC has
been, or is expected by the Parent, any of its Subsidiaries or
any ERISA Affiliate to be, incurred by the Parent, any of its
Subsidiaries or any ERISA Affiliate where such liability could
reasonably be expected to have a Material Adverse effect. Li-
ability, as referred to in this Section 4.13, includes any joint
and several liability. Each Employee Benefit Plan which is a
group health plan within the meaning of Section 5000(b)(1) of the
Code is in material compliance with the continuation of health
care coverage requirements of Section 4980B of the Code.
(b) All contributions required to be made
with respect to each Foreign Pension Plan have been timely made.
Each Foreign Pension Plan has been maintained in compliance with
its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been
83
maintained, where required, in good standing with applicable
Governmental Authorities. Neither the Parent nor any of its
Subsidiaries has incurred any obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan. The
present value of the accrued benefit liabilities (whether or not
vested) under each Foreign Pension Plan required to be funded,
determined as of the end of the most recently ended fiscal year
on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the current value of the assets of
such Foreign Pension Plan allocable to such benefit liabilities
by more than the foreign exchange equivalent (based on the
applicable spot exchange rate) of $2,000,000.
N. Environmental Matters
Neither the Parent nor any of its
Subsidiaries (a) has received written notice or otherwise learned
of any claim, demand, action, event, condition, report or
investigation indicating or concerning any potential or actual
liability which individually or in the aggregate could reasonably
be expected to have a Material Adverse effect, arising in connec-
tion with (i) any non-compliance with or violation of the
requirements of any applicable federal, state, local or foreign
environmental health or safety statute or regulation, or (ii) the
release or threatened release of any toxic or hazardous waste,
substance or constituent, or other substance into the environ-
ment, (b) to the best knowledge of the Parent and the Borrowers,
has any threatened or actual liability in connection with the
release or threatened release of any toxic or hazardous waste,
substance or constituent, or other substance into the environment
which individually or in the aggregate could reasonably be
expected to have a Material Adverse effect, (c) has received
notice of any federal, state, local or foreign investigation
evaluating whether any remedial action is needed to respond to a
release or threatened release of any toxic or hazardous waste,
substance or constituent or other substance into the environment
for which the Parent or any of its Subsidiaries is or would be
liable, which liability would reasonably be expected to have a
Material Adverse effect, or (d) has received notice that the
Parent or any of its Subsidiaries is or may be liable to any
Person under the Comprehensive Environmental Response, Compen-
sation and Liability Act, as amended, 42 U.S.C. Section 9601 et
seq., or any analogous state, local or foreign law, which
liability would reasonably be expected to have a Material Adverse
effect. The Parent and each of its Subsidiaries is in compliance
with the financial responsibility requirements of federal, state,
local and foreign environmental laws to the extent applicable,
including those contained in 40 C.F.R., parts 264 and 265,
subpart H, and any analogous federal, state, local or foreign
law, except in those cases in which the failure so to comply
would not reasonably be expected to have a Material Adverse
effect.
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O. Financial Statements
The Parent has heretofore delivered to the
Administrative Agent and the Lenders copies of its Form 10-K for
the fiscal year ended January 31, 1995, containing the audited
Consolidated Balance Sheets of the Parent and its Subsidiaries as
of such date and the related Consolidated Statements of Income,
Stockholders' Equity and Cash Flows for the fiscal year then
ended (collectively, with the applicable related notes and sched-
ules, the "Financial Statements"). The Financial Statements
fairly present the Consolidated financial condition and results
of the operations of the Parent and its Subsidiaries as of the
dates and for the periods indicated therein and have been pre-
pared in conformity with GAAP as then in effect subject, in the
case of interim Financial Statements, to normal year-end
adjustments. Neither the Parent nor any of its Subsidiaries has
any obligation or liability of any kind (whether fixed, accrued,
contingent, unmatured or otherwise) which, in accordance with
GAAP as then in effect, should have been disclosed in the Fi-
nancial Statements and was not. Since January 31, 1995, there
has been no Material Adverse change.
P. Franchises, Intellectual Property, Etc.
Each of the Parent and each of its
Subsidiaries possesses or has the right to use all franchises,
Intellectual Property, licenses and other rights as are material
and necessary for the conduct of its business, and with respect
to which it is in compliance, with no known conflict with the
valid rights of others which could reasonably be expected to have
a Material Adverse effect. No event has occurred which permits
or, to the best knowledge of the Parent and the Borrowers, after
notice or the lapse of time or both, or any other condition,
could reasonably be expected to permit, the revocation or ter-
mination of any such franchise, Intellectual Property, license or
other right which revocation or termination could reasonably be
expected to have a Material Adverse effect.
Q. Labor Relations
Except as set forth on Schedule 4.17,
neither the Parent nor any of its Subsidiaries is a party to any
collective bargaining agreement and, to the best knowledge of the
Parent and the Borrowers, no petition has been filed or proceed-
ings instituted by any employee or group of employees with any
labor relations board seeking recognition of a bargaining rep-
resentative with respect to the Parent or such Subsidiary. There
are no material controversies pending between the Parent or any
of its Subsidiaries and any of their respective employees, which
could reasonably be expected to have a Material Adverse effect.
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V. CONDITIONS OF LENDING - LOANS ON THE FIRST
BORROWING DATE
In addition to the requirements set forth in
Section 6, the obligation of each Lender to make one or more
Loans, the obligation of the Swing Line Lender to make one or
more Swing Line Loans and the obligation of the Issuing Bank to
issue one or more Letters of Credit, on the first Borrowing Date
(which shall not occur prior to the Effective Date) is subject to
the fulfillment of the following conditions prior to or
simultaneously with the making of such Loans or the issuance of
such Letters of Credit:
A. Evidence of Corporate Action
The Administrative Agent shall have re-
ceived a certificate, dated the first Borrowing Date, of the Sec-
retary or Assistant Secretary of each Credit Party (i) attaching
a true and complete copy of the resolutions of its Board of Di-
rectors and of all documents evidencing all necessary corporate
action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize the Loan Documents
to which it is a party and the transactions contemplated thereby,
(ii) attaching a true and complete copy of its organizational
documents, (iii) setting forth the incumbency of its officer(s)
who may sign such Loan Documents, including therein a signature
specimen of such officer(s), and (iv) attaching a certificate of
good standing of the Secretary of State of the State of its
incorporation and each of the jurisdictions listed on Schedule
5.1, in each case to the extent such certificate of good standing
is available.
B. Guaranty
Each of the Parent, Tiffany, Tiffany
International and Tiffany Japan shall have delivered to the Ad-
ministrative Agent a guaranty, dated as of the date hereof,
executed by such Credit Party and in the form of Exhibit N (as
the same may be amended, supplemented or otherwise modified from
time to time, the "Guaranty").
C. Approvals
The Administrative Agent shall have
received evidence reasonably satisfactory to it that all
approvals and consents of all Governmental Authorities, and all
approvals and all consents of all other Persons, in each case
which are required to be obtained in connection with the consum-
mation of the transactions contemplated by the Loan Documents
have been obtained and that all required notices have been given,
and the Administrative Agent shall have received a certificate,
in all respects reasonably satisfactory to the Administrative
86
Agent, of the Responsible Officer to the foregoing effect to the
best knowledge of such officer.
D. Litigation
There shall be no injunction, writ,
preliminary restraining order or other order of any nature issued
by any Governmental Authority in any respect affecting any Loan
Document or any transaction contemplated by the Loan Documents,
and no action or proceeding by or before any Governmental Au-
thority shall have been commenced and be pending seeking to
prevent or delay any of the foregoing or challenging any term or
provision thereof or seeking any damages in connection therewith,
and the Administrative Agent shall have received a certificate,
in all respects reasonably satisfactory to the Administrative
Agent, of the executive officers or analogous counterparts of the
Parent to the foregoing effect to the best knowledge of such
officer.
E. Approval of Special Counsel
All legal matters incident to the making
of the Loans on the first Borrowing Date shall be reasonably
satisfactory to Special Counsel, and the Administrative Agent
shall have received from Special Counsel an opinion, dated the
first Borrowing Date, substantially in the form of Exhibit P.
F. Opinion of Counsel to the Borrowers and
the Parent
(a) The Administrative Agent shall have
received an opinion of Scott A. Klion, Esq., Associate General
Counsel to the Parent and counsel to the Domestic Borrowers,
dated the first Borrowing Date, substantially in the form of
Exhibit O-1.
(b) The Administrative Agent shall have
received, in respect of each Borrower which is not a Domestic
Borrower, an opinion of local foreign counsel, reasonably
satisfactory to the Administrative Agent, to such Borrower, dated
the first Borrowing Date, substantially in the form of Exhibit O-
2.
G. Existing Indebtedness
All Indebtedness set forth on Schedule 5.7
shall have been paid in full, all Liens, if any, securing the
same shall have been terminated, and the Administrative Agent
shall have received satisfactory evidence of the foregoing.
H. Payment of Fees
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The Parent and the Borrowers shall have
paid to the Issuing Bank, the Swing Line Lender, the
Administrative Agent, the Arranging Agent and the Lenders all
fees and all expenses which they shall have agreed to pay, to the
extent such fees and expenses shall have become payable on or
prior to the first Borrowing Date, and shall have paid the rea-
sonable fees and disbursements of Special Counsel in connection
with such agreement to the extent billed therefor.
I. Other Documents
The Administrative Agent shall have
received such other documents (including financial statements and
projections), each in form and substance reasonably satisfactory
to the Administrative Agent, as the Administrative Agent shall
reasonably require in connection with the making of the first
Loans and the issuance of the first Letters of Credit.
VI. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF
CREDIT
The obligation of each Lender to make each Loan,
the obligation of the Swing Line Lender to make each Swing Line
Loan and the obligation of the Issuing Bank to issue each Letter
of Credit is subject to the fulfillment of the following condi-
tions precedent:
A. Compliance
On each Borrowing Date, and after giving
effect to the Loans to be made, and the Letters of Credit to be
issued, on such Borrowing Date, (a) there shall exist no Default
or Event of Default and (b) the representations and warranties
contained in this Agreement shall be true and correct with the
same effect as though such representations and warranties had
been made on such Borrowing Date except to the extent that any
representation or warranty under Section 4.1 expressly relates to
an earlier date.
B. Loan Closings
All documents required by the provisions
of this Agreement to have been executed or delivered by each
Credit Party to the Administrative Agent, the Issuing Bank, the
Swing Line Lender or any Lender on or before the applicable
Borrowing Date shall have been so executed or delivered on or be-
fore such Borrowing Date.
C. Borrowing or Letter of Credit Request
The receipt by the Administrative Agent of
88
a Notice of Borrowing, in the case of such Loan, or a Letter of
Credit Request, in the case of a Letter of Credit, executed by
the Parent and the applicable Borrower making such request.
D. Other Documents
The Administrative Agent shall have
received such other documents (including financial statements and
projections), each in form and substance reasonably satisfactory
to the Administrative Agent, as the Administrative Agent shall
reasonably require in connection with the making of the Loans and
the issuance of the Letters of Credit on such Borrowing Date.
VII. AFFIRMATIVE AND FINANCIAL COVENANTS
The Parent agrees that, so long as any Loan
Document is in effect, any Loan, Letter of Credit or
reimbursement obligation (contingent or otherwise) in respect of
any Letter of Credit remains outstanding and unpaid, or any
other amount is owing under any Loan Document to any Lender or
the Administrative Agent, the Parent will:
A. Legal Existence
Except as may otherwise be permitted by
Sections 8.4, 8.5 and 8.6, maintain, and cause each of its
Subsidiaries to maintain, (a) its corporate or partnership
existence, as the case may be, and (b) such existence in good
standing in the jurisdiction of its incorporation or formation
and in each other jurisdiction in which the failure so to do
could reasonably be expected to have a Material Adverse effect;
provided however, that subject to Section 8, nothing in this
Section 7.1 shall prevent the abandonment or termination of the
corporate existence or good standing of any Subsidiary of the
Parent (other than Tiffany, Tiffany International and Tiffany
Japan) in any jurisdiction if (i), in the reasonable judgment of
the Parent and such Subsidiary, such abandonment or termination
is in the best interest of the Parent and its Subsidiaries taken
as a whole and would not have a Material Adverse effect and (ii)
such Subsidiary, at the time of such abandonment or termination,
has no obligations, contingent or otherwise, under any Loan
Documents to any Lender, the Swing Line Lender, the Issuing Bank
or the Administrative Agent.
B. Taxes
Pay and discharge when due, and cause each
of its Subsidiaries so to do, all taxes, assessments, govern-
mental charges, license fees and levies upon or with respect to
the Parent and such Subsidiary, and upon the income, profits and
Property thereof unless, and only to the extent, that (a) such
89
taxes, assessments, governmental charges, license fees and levies
shall be contested in good faith and by appropriate proceedings
diligently conducted by the Parent or such Subsidiary, and (b)
such reserve or other appropriate provision as shall be required
by GAAP shall have been made therefor.
C. Insurance
Maintain, and cause each of its
Subsidiaries to maintain, insurance with financially sound insur-
ance carriers against at least such risks, and in at least such
amounts, as are usually insured against by similar businesses,
including business interruption, public liability (bodily injury
and property damage), fidelity, workers' compensation (where
required) and property insurance, upon request a detailed list of
such insurance then in effect, stating the names of the carriers
thereof, the policy numbers, the insureds thereunder, the amounts
of insurance, dates of expiration thereof, and the Property and
risks covered thereby; except that the Parent or any of its
Subsidiaries may effect workers' compensation or similar
insurance in respect of operations in any jurisdiction either
through an insurance fund operated by such jurisdiction or by
causing to be maintained a system or systems of self-insurance
which is in accord with applicable laws and good business
practice.
D. Performance of Obligations
Pay and discharge promptly when due, and
cause each of its Subsidiaries so to do, all lawful Indebtedness,
obligations and claims for labor, materials and supplies or
otherwise which, if unpaid, could reasonably be expected to (a)
have a Material Adverse effect, or (b) become a Lien on the
Property of the Parent or any of its Subsidiaries, except those
Liens permitted under Section 8.3, provided that neither the
Parent nor such Subsidiary shall be required to pay or discharge
or cause to be paid or discharged any such Indebtedness, obliga-
tion or claim so long as (i) the validity thereof shall be con-
tested in good faith and by appropriate proceedings diligently
conducted by the Parent or such Subsidiary, and (ii) such reserve
or other appropriate provision as shall be required by GAAP shall
have been made therefor.
E. Condition of Property
Except for ordinary wear and tear, at all
times, maintain, protect and keep in good repair, working order
and condition, all Property used in the operation of its business
(other than Property which is replaced with similar Property),
except (i) to the extent that the failure so to do would not, in-
dividually or in the aggregate, have a Material Adverse effect,
and cause each of its Subsidiaries so to do and (ii) as permitted
90
under Sections 8.3 and 8.4.
F. Observance of Legal Requirements
Observe and comply in all material
respects, and cause each of its Subsidiaries so to do, with all
laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and re-
quirements of all Governmental Authorities, which now or at any
time hereafter may be applicable to it or to such Subsidiary, a
violation of which could reasonably be expected to have a
Material Adverse effect.
G. Financial Statements and Other Information
Maintain, and cause each of its
Subsidiaries to maintain, a standard system of accounting in
accordance with GAAP, and furnish to each Lender:
(a) As soon as available and, in any
event, within 105 days after the close of each fiscal year, a
copy of (i) the Balance Sheet as of the end of such fiscal year,
of the Parent on a Consolidated basis, and (ii) the related
Statements of Income, Cash Flows and Shareholder's Equity for
such fiscal year, of the Parent on a Consolidated basis, setting
forth in each case in comparative form the corresponding figures
in respect of the previous fiscal year, all in reasonable detail,
and accompanied by, in the case of such Consolidated financial
statements, a report of the Accountants, which report shall state
that (A) the Accountants audited such Consolidated financial
statements, (B) such audit was made in accordance with generally
accepted auditing standards in effect at the time and provides a
reasonable basis for such opinion, and (C) said Consolidated
financial statements have been prepared in accordance with GAAP;
(b) Simultaneously with the delivery of
the certified statements required by clause (a) above, copies of
a certificate of such Accountants stating that, in making the ex-
amination necessary for their audit of the Consolidated financial
statements of the Parent for such fiscal year, nothing came to
their attention of a financial or accounting nature that caused
them to believe that there shall have occurred any condition or
event which would constitute a Default or an Event of Default,
or, if so, specifying in such certificate all such Defaults and
Events of Default and the nature and status thereof;
(c) As soon as available, and in any event
within 50 days after the end of each of the first three fiscal
quarters, and 105 days after the end of the last fiscal quarter,
of each fiscal year, a copy of (i) the Balance Sheet, as of the
end of such quarter, of the Parent on a Consolidated basis and
(ii) the related Statements of Income, Cash Flows and
91
Shareholder's Equity, of the Parent on a Consolidated basis for
(x) such quarter, and (y) the period from the beginning of the
then current fiscal year to the end of such quarter, in each case
in comparative form with the prior fiscal year, all in reasonable
detail and prepared in accordance with GAAP (without footnotes
and subject to year-end adjustments), together with a certificate
of the Responsible Officer, which certificate shall state that
all such financial statements fairly present the financial
condition and results of operations of the Parent and its Sub-
sidiaries and have been prepared in accordance with GAAP (but
without footnotes and subject to year-end adjustments);
(d) Notwithstanding anything to the
contrary contained herein, the Parent may satisfy its obligation
to furnish (i) the Consolidated financial statements referred to
in clause (a) above by furnishing, as soon as available, and in
any event within 105 days after the end of the applicable fiscal
year, a copy of the annual audited Consolidated financial
statements of the Parent and its Subsidiaries prepared in con-
formity with GAAP and as filed with the SEC for such fiscal year,
and (ii) the Consolidated financial statements referred to in
clause (c) above by furnishing, as soon as available, and in any
event within 50 days after the end of the applicable fiscal
quarter, copies of the Consolidated financial statements of the
Parent and its Subsidiaries as filed with the SEC for the
applicable fiscal quarter;
(e) Simultaneously with the delivery of
the financial statements required by clauses (a), (c) and (d)
above, a certificate of the Responsible Officer certifying that
to the best of his knowledge no condition or event has occurred
which would constitute a Default or an Event of Default, or if
so, specifying in such certificate all such violations, condi-
tions and events and the nature and status thereof;
(f) Within 45 days after the end of each
of the first three fiscal quarters, and within 90 days after the
end of the last fiscal quarter, of each fiscal year, a Compliance
Certificate, as of the end of such fiscal quarter, certified by
the Responsible Officer;
(g) As soon as available, and in any event
within two Business Days after any downgrade or withdrawal by
either S&P or Moody's of the senior unsecured long term debt
Rating assigned to the Parent, written notice to the
Administrative Agent and each Lender thereof, and the effective
date thereof, in each case certified by the Responsible Officer;
(h) Prompt written notice upon the Parent
or any of its Subsidiaries obtaining knowledge that: (i) any In-
debtedness of the Parent or any of its Subsidiaries in an
aggregate amount in excess of $5,000,000 shall have been declared
92
or become due and payable prior to its stated maturity, or called
and not paid when due, or required to be purchased or otherwise
acquired by the Parent or any of its Subsidiaries prior to its
stated maturity, and whether such acceleration shall have been
rescinded or annulled, or (ii) the holders of any notes, or other
evidence of Indebtedness, certificates or securities evidencing
any such Indebtedness, or any obligees with respect to any other
Indebtedness of the Parent or any of its Subsidiaries, have the
right to declare Indebtedness in an aggregate amount in excess
of $5,000,000 due and payable prior to its stated maturity or
have the right to require the Parent or any of its Subsidiaries
to purchase or otherwise acquire any such Indebtedness prior to
its stated maturity and whether such right shall have been
waived;
(i) Prompt written notice of: (i) any
citation, summons, subpoena, order to show cause or other order
naming the Parent or any of its Subsidiaries a party to any pro-
ceeding before any Governmental Authority which could reasonably
be expected to have a Material Adverse effect, and include with
such notice a copy of such citation, summons, subpoena, order to
show cause or other order, (ii) any lapse or other termination of
any license, permit, franchise or other authorization issued to
the Parent or any of its Subsidiaries by any Governmental
Authority, (iii) any refusal by any Governmental Authority to
renew or extend any license, permit, franchise or other autho-
rization, and (iv) any dispute between the Parent or any of its
Subsidiaries and any Governmental Authority, which lapse, ter-
mination, refusal or dispute, referred to in clause (ii), (iii)
or (iv) above, could reasonably be expected to have a Material
Adverse effect;
(j) Promptly upon becoming available,
copies of all regular, periodic or special reports, schedules,
proxy statements, registration statements, 10-Ks, 10-Qs and 8-Ks
which the Parent or any of its Subsidiaries may now or hereafter
be required to file with or deliver to any securities exchange or
the SEC, and copies of all material news releases sent to fi-
nancial analysts;
(k) Prompt written notice in the event
that the Parent or any of its Subsidiaries knows, or has reason
to know, that (i) any Termination Event with respect to a Pension
Plan has occurred or will occur, (ii) any condition exists with
respect to a Pension Plan (other than a Multiemployer Plan) which
presents a material risk of termination of such Pension Plan by
the PBGC, imposition of an excise tax on the Parent, any of its
Subsidiaries or any ERISA Affiliate or the requirement that the
Parent, any of its Subsidiaries or any ERISA Affiliate provide
security to any Pension Plan, (iii) the Parent, any of its
Subsidiaries or any ERISA Affiliate has applied for a waiver of
the minimum funding standard under Section 412 of the Code with
93
respect to a Pension Plan, (iv) the aggregate amount of the
Unfunded Pension Liabilities under all Pension Plans (other than
Multiemployer Plans) has increased to an amount in excess of
$2,000,000, (v) the aggregate amount of Unrecognized Retiree Wel-
fare Liability under all applicable Employee Benefit Plans has
increased to an amount in excess of $2,000,000, (vi) the Parent,
any of its Subsidiaries or any ERISA Affiliate has engaged in a
Prohibited Transaction with respect to an Employee Benefit Plan,
(vii) the imposition of a tax upon the Parent or any of its
Subsidiaries under Section 4980B(a) of the Code, or (viii) the
assessment of a civil penalty under Section 502(c) of ERISA
against the Parent or any of its Subsidiaries, or (ix) any
condition with respect to a Multiemployer Plan exists which
presents a risk of material liability to the Parent or any of its
Subsidiaries or would reasonably be expected to have a Material
Adverse effect, in each case together with a certificate of the
Responsible Officer setting forth the details of such event and
the action which the Parent, such Subsidiary or such ERISA Af-
filiate proposes to take with respect thereto, together with a
copy of all notices and filings with respect thereto;
(l) Prompt written notice in the event
that the Parent, any of its Subsidiaries or any ERISA Affiliate
shall receive a demand letter from the PBGC notifying the Parent,
such Subsidiary or such ERISA Affiliate of any final decision
finding liability of the Parent, any of its Subsidiaries or any
ERISA Affiliate and the date by which such liability must be
paid, together with a copy of such letter and a certificate of
the Responsible Officer setting forth the action which the
Parent, such Subsidiary or such ERISA Affiliate proposes to take
with respect thereto;
(m) Promptly upon the same becoming
available, and in any event by the date such amendment is
adopted, a copy of any Pension Plan amendment that the Parent,
any of its Subsidiaries or any ERISA Affiliate proposes to adopt
which would require the posting of security under Section
401(a)(29) of the Code, together with a certificate of the
Responsible Officer setting forth the reasons for the adoption of
such amendment and the action which the Parent, such Subsidiary
or such ERISA Affiliate proposes to take with respect thereto;
(n) As soon as possible and in any event
by the 10th day after any required installment or other payment
under Section 412 of the Code owed to a Pension Plan by the
Parent, any of its Subsidiaries or any ERISA Affiliate shall have
become due and owing and remain unpaid a copy of the notice of
failure to make required contributions provided to the PBGC by
the Parent, any of its Subsidiaries or any ERISA Affiliate under
Section 412(n) of the Code, together with a certificate of the
Responsible Officer setting forth the action which the Parent,
such Subsidiary or such ERISA Affiliate proposes to take with re-
94
spect thereto;
(o) If the termination of any Pension Plan
would result in the imposition of any tax under Section 4980 of
the Code, then as soon as possible, but in no event less than 60
days before the due date of the tax, a certificate of the
Responsible Officer setting forth the estimated amount of the
tax, any reversion, and the proposed use of the reversion (this
Section 7.7(o) shall apply to a transaction notwithstanding a
reduction or complete elimination of the tax because of the
operation of either Sections 4980(d) or 420(a)(3)(A) of the
Code);
(p) Upon a Responsible Officer becoming
aware thereof, prompt written notice that a material contribution
required to be made to any Foreign Pension Plan has not been
timely made, the failure of which would reasonably be expected to
have a Material Adverse effect;
(q) Upon a Responsible Officer becoming
aware thereof, prompt written notice of the occurrence of (i)
each Default, (ii) each Event of Default, and (iii) each Material
Adverse change;
(r) Promptly upon receipt thereof, copies
of all audit reports relating to the Parent or any of its
Subsidiaries submitted by the Accountants in connection with each
annual, interim or special audit of the books of the Parent or
any of its Subsidiaries; and
(s) Promptly upon request therefor, such
other information and reports regarding the business, condition
(financial or otherwise), property or prospects of the Parent and
its Subsidiaries, as the Administrative Agent or any Lender at
any time or from time to time may reasonably request.
H. Inspection
At all reasonable times, upon reasonable
prior notice, permit representatives of the Administrative Agent
or any Lender to visit the offices of the Parent or each of its
Subsidiaries, to examine the books and records thereof and Ac-
countants' reports relating thereto, and to make copies or
extracts therefrom, to discuss the affairs of the Parent or each
of its Subsidiaries with the respective officers thereof, and to
examine and inspect the Property of the Parent or each of its
Subsidiaries and to meet and discuss the affairs of the Parent
and each of its Subsidiaries with the Accountants.
I. Authorizations
Maintain and cause each of its
95
Subsidiaries to maintain, in full force and effect, all copy-
rights, patents, trademarks, trade names, franchises, licenses,
permits, applications, reports, and other authorizations and
rights, as are necessary for the conduct from time to time of
their businesses, except to the extent the failure so to maintain
such items, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse effect.
J. Subsidiaries
(a) At all times maintain (directly or
indirectly), beneficially and of record, (i) at least 51% of the
voting control of, and at least 51% of the equity in, Tiffany &
Co. K.K., and (ii) 100% of the voting control of, and 100% of the
equity in, each other Subsidiary Borrower.
(b) Except as set forth on Schedule 4.1 or
as may otherwise be permitted by Sections 8.4, 8.5 and 8.6, at
all times maintain (directly or indirectly), beneficially and of
record, 100% of the voting control of, and 100% of the equity in,
each of its other Subsidiaries.
K. Leverage Ratio
At all times have a Leverage Ratio not
greater than 0.55:1.00.
L. Interest Coverage Ratio
At all times have an Interest Coverage
Ratio greater than 2.50:1.00.
VIII. NEGATIVE COVENANTS
The Parent agrees that, so long as any Loan
Document is in effect, any Loan, Letter of Credit or
reimbursement obligation (contingent or otherwise) in respect of
any Letter of Credit remains outstanding and unpaid, or any other
amount is owing under any Loan Document to any Lender, the Swing
Line Lender or the Administrative Agent, the Parent shall not,
directly or indirectly:
A. Indebtedness
Create, incur, assume or suffer to exist
any Indebtedness, or permit any of its Subsidiaries so to do,
except any one or more of the following types of Indebtedness:
(a) Indebtedness under the Loan Documents, (b) Indebtedness of
the Subsidiaries of the Parent in an aggregate principal amount
not in excess of $25,000,000 at any one time outstanding (i) in
respect of capital leases, (ii) secured by Liens on Property
96
acquired by any such Subsidiary after the date hereof provided
that such Liens are in existence on the date of such acquisition
and were not placed on such Property in contemplation of such ac-
quisition, and (iii) other purchase money Indebtedness of the
Subsidiaries of the Parent, provided that, in each case under
this clause (b), the Lien securing such Indebtedness is permitted
by Section 8.3, (c) Indebtedness set forth on Schedule 8.1 and
any refinancings, extensions and renewals thereof, (d)
Indebtedness set forth on Schedule 5.7, provided that it will be
repaid in full simultaneously with the making of the Loans on the
first Borrowing Date, (e) Intercompany Debt, (f) other In-
debtedness of the Subsidiaries of the Parent in an aggregate
principal amount at any one time outstanding not to exceed
$10,000,000, provided that immediately before and after giving
effect to the creation, incurrence or assumption of such
Indebtedness no Default or Event of Default shall or would exist,
(g) Indebtedness of the Parent, provided that immediately before
and after giving effect to the creation, incurrence or assumption
of such Indebtedness no Default or Event of Default shall or
would exist, and (h) Indebtedness in the form of a deferred
payable of Tiffany to Mitsukoshi Limited in the principal amount
of 2.5 billion Japanese yen.
B. Interest Rate Protection Arrangements and
Other Hedging Arrangements
Create, incur, assume or suffer to exist
any indebtedness under or in respect of any Interest Rate
Protection Arrangement or any Other Hedging Arrangement, or
permit any of its Subsidiaries so to do, except (i) foreign
currency purchased put options and forward exchange contracts
intended to reduce the risk on foreign currency denominated
transactions and (ii) interest rate swap agreements to modify the
interest rate characteristics of up to $100,000,000 notional
principal amount of Indebtedness.
C. Liens
Create, incur, assume or suffer to exist
any Lien against or on any Property now owned or hereafter ac-
quired by the Parent or any of its Subsidiaries, or permit any of
its Subsidiaries so to do, except any one or more of the
following types of Liens: (a) Liens in connection with workers'
compensation, unemployment insurance or other social security
obligations (which phrase shall not be construed to refer to
ERISA or the minimum funding obligations under Section 412 of the
Code), (b) Liens to secure the performance of bids, tenders,
letters of credit, contracts (other than contracts for the
payment of Indebtedness), leases, statutory obligations, surety,
customs, appeal, performance and payment bonds and other
obligations of like nature, in each such case arising in the
ordinary course of business, (c) mechanics', workmen's,
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carriers', warehousemen's, materialmen's, landlords', or other
like Liens arising in the ordinary course of business with
respect to obligations which are not due or which are being
contested in good faith and by appropriate proceedings diligently
conducted, (d) Liens for taxes, assessments, fees or governmental
charges the payment of which is not required by Section 7.2, (e)
easements, rights of way, restrictions, leases of Property to
others, easements for installations of public utilities, title
imperfections and restrictions, zoning ordinances and other
similar encumbrances affecting Property which in the aggregate do
not materially impair its use for the operation of the business
of the Parent or such Subsidiary, (f) Liens set forth on Schedule
8.3 and any renewal thereof, (g) Liens under capital leases and
Liens on Property (including, in the event such Property con-
stitutes capital stock of a newly acquired Subsidiary of the
Parent, Liens on the Property of such Subsidiary) hereafter
acquired and either existing on such Property when acquired, or
created contemporaneously with such acquisition, to secure the
payment or financing of the purchase price thereof, provided that
such Liens attach only to the Property so purchased or acquired
and provided further that the Indebtedness secured by such Liens
is permitted by Section 8.1(b), (h) Liens created under the Loan
Documents, (i) statutory Liens in favor of lessors arising in
connection with Property leased to the Parent or any of its Sub-
sidiaries, (j) Liens of attachments, judgments or awards against
the Parent or any of its Subsidiaries with respect to which an
appeal or proceeding for review shall be pending or a stay of
execution shall have been obtained, or which are otherwise being
contested in good faith and by appropriate proceedings diligently
conducted, and in respect of which adequate reserves shall have
been established in accordance with GAAP on the books of the
Parent or such Subsidiary, and (k) Intercompany Liens.
D. Dispositions
Make any Disposition or permit any of its
Subsidiaries so to do, except any one or more of the following:
(a) Dispositions of any Investments permitted under Sections
8.7(a), (b), (c), (d) or (e), (b) Intercompany Dispositions, (c)
Dispositions in the ordinary course of business (including the
disposition of closed stores and the disposition of certain New
Jersey facilities in connection with the consolidation of such
facilities' operations into a new facility to be constructed and
leased in Parsippany, New Jersey), and (d) other Dispositions of
Property having a fair market value which, when aggregated with
the fair market value of all other Dispositions of Property
(other than Dispositions described in the preceding clauses (a),
(b) and (c) made on and after the Effective Date, would not
exceed $75,000,000 on a Consolidated basis, provided, however,
that immediately before and after giving effect thereto, no
Default or Event of Default shall or would exist.
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E. Merger or Consolidation, Etc.
(a) Consolidate with, be acquired by, or
merge into or with any Person, or convey or otherwise transfer
all or substantially all of its Property, or permit any of its
Subsidiaries so to do, except that:
(i) any of its wholly-owned Subsidiar-
ies (other than a Borrower) may consolidate with or merge with
any of its other Subsidiaries (other than a Borrower), or convey
or transfer all or substantially all of its Property to any of
its other wholly-owned Subsidiaries (other than a Borrower),
provided that (x) immediately before and after giving effect
thereto no Default or Event of Default shall or would exist and
(y) the Administrative Agent shall have received 15 Business
Days' prior written notice thereof, and
(ii) any of its wholly-owned
Subsidiaries may consolidate with or merge with any Subsidiary
Borrower, or convey or transfer all or substantially all of its
Property to any Subsidiary Borrower, provided that (w)
immediately before and after giving effect thereto no Default or
Event of Default shall or would exist, (x) such Subsidiary
Borrower shall be the survivor of such consolidation or merger,
(y) the Administrative Agent shall have received 15 Business
Days' prior written notice of such consolidation, merger,
conveyance or transfer, and (z) the Administrative Agent shall
have received such documents, opinions and certificates as the
Administrative Agent shall have reasonably requested in
connection therewith.
F. Acquisitions
Make any Acquisition, or permit any of its
Subsidiaries so to do, except any one or more of the following:
(a) Acquisitions of Investments permitted by Section 8.7, (b)
Intercompany Acquisitions permitted by Section 8.5, and (c)
Acquisitions by the Parent or any of its Subsidiaries, provided
that (i) immediately before and after giving effect to each such
Acquisition no Default or Event of Default shall or would exist,
(ii) immediately after giving effect to each such Acquisition,
all of the representations and warranties contained in Section 4
shall be true and correct as if then made except to the extent
that any representation or warranty under Section 4.1 expressly
relates to an earlier date, and (iii) the aggregate consideration
paid for all such Acquisitions shall not exceed $50,000,000.
G. Investments
Any time hold, purchase, invest in or
otherwise acquire any derivative product or any interest therein
or any debt security or Stock of, or any other equity interest
99
in, any Person, or make any loan or advance to, or enter into any
arrangement for the purpose of providing funds or credit to, or
make any other investment, whether by way of capital contribution
or otherwise, in any Person (all of which are sometimes referred
to herein as "Investments"), or permit any of its Subsidiaries so
to do, except any one or more of the following Investments: (a)
Investments in short-term direct obligations of the United States
of America (and not the agencies or instrumentalities thereof),
(b) Investments in short-term debt securities of any issuer,
provided that the principal thereof and interest thereon is
unconditionally guaranteed by the United States of America (and
not the agencies or instrumentalities thereof), (c) Investments
in short-term certificates of deposit, in Dollars, of any Lender
or any other depository institution chartered under the laws of
the United States of America or any State thereof the deposits of
which are insured by the Federal Deposit Insurance Corporation
and which has capital and undivided surplus of not less than
$500,000,000, (d) Investments in commercial paper having a com-
mercial paper rating of not lower than (i) A-1 by S&P, or (ii) P-
1 by Moody's, (e) Investments existing on the date hereof and set
forth on Schedule 8.7, (f) Investments in Intercompany Debt, (g)
Investments in the Parent or any Subsidiary or any Person who
immediately thereafter becomes a Subsidiary, (h) Investments from
the net cash proceeds received from the issuance of additional
shares of the Parent's capital stock, (i) Acquisitions permitted
by Section 8.6, (j) Investments in short-term certificates of
deposit or similar instruments, in any Currency other than
Dollars, of any bank which has capital and undivided surplus of
not less than the equivalent of $1,000,000,000, and (k)
additional Investments in an aggregate amount not exceeding
$5,000,000 or the equivalent thereof.
H. Restricted Payments
Make any Restricted Payment or permit any
of its Subsidiaries so to do, except any one or more of the
following Restricted Payments: (a) any direct or indirect
wholly-owned Subsidiary of the Parent may make dividends or other
distributions to the Parent or to any other direct or indirect
wholly-owned Subsidiary of the Parent, and (b) the Parent may
make regular periodic dividends at a rate which is substantially
consistent with past practice, provided that immediately before
and after giving effect thereto, no Default or Event of Default
shall or would exist.
I. Limitation on Upstream Dividends by Sub-
sidiaries
Permit, cause or suffer to exist, any of
its Subsidiaries to enter into or agree, or otherwise be or
become subject, to any agreement, contract or other arrangement
(other than this Agreement) with any Person pursuant to the terms
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of which (a) such Subsidiary is or would be prohibited from
declaring or paying any cash dividends on any class of its stock
owned directly or indirectly by the Parent or any of its other
Subsidiaries or from making any other distribution on account of
any class of any such stock (herein referred to as "Upstream
Dividends"), or (b) the declaration or payment of Upstream Divi-
dends by a Subsidiary of the Parent to the Parent or another
Subsidiary of the Parent, on an annual or cumulative basis, is or
would be otherwise limited or restricted.
J. Transactions with Affiliates
Become, or permit any of its Subsidiaries
to become, a party to any material transaction with any Affiliate
of the Parent on a basis less favorable in any material respect
than if such transaction were not with an Affiliate of the
Parent.
IX. DEFAULT
A. Events of Default
The following shall each constitute an
"Event of Default" hereunder:
(a) The failure of any Borrower to make
any principal payment on any Loan or any reimbursement payment in
respect of any Letter of Credit when due and payable; or
(b) The failure of any Borrower to make
payment of any installment of interest on any Loan or any fee or
other amount payable under or in respect of any Loan Document on
the date when due and payable and such default shall continue
unremedied for a period of three Business Days after the same
shall have become due; or
(c) The failure of the Parent or any
Borrower to observe or perform any covenant or agreement
contained in Section 2.18, 7.1(a), 7.11 or 7.12, or in Section 8;
or
(d) The failure of the Parent or any
Borrower to observe or perform any other covenant or agreement
contained in this Agreement, and such failure shall have
continued unremedied for a period of 30 days after any
Responsible Officer shall have become aware of such failure; or
(e) Any representation or warranty of any
Credit Party (or of any of its officers on its behalf) made in
any Loan Document or in any certificate, report, opinion (other
than an opinion of counsel) or other document delivered on or
after the date hereof pursuant to any Loan Document, shall in any
101
such case prove to have been incorrect or misleading (whether
because of misstatement or omission) in any material respect when
made; or
(f) (i) Liabilities and/or other
obligations in an aggregate amount in excess of $5,000,000 of the
Parent or any of its Subsidiaries on a Consolidated basis (other
than the obligations hereunder and Intercompany Debt), whether as
principal, guarantor, surety or other obligor, for the payment or
purchase of any Indebtedness, (A) shall become or shall be de-
clared to be due and payable prior to the expressed maturity
thereof (unless such acceleration shall have thereafter been
unconditionally rescinded or annulled prior to the time that the
Aggregate Commitment has been terminated or the Loans have become
or been declared due and payable), or (B) shall not be paid when
due or within any grace period for the payment or purchase
thereof, or (ii) any holder of any such obligations shall have
the right to declare the Indebtedness evidenced thereby due and
payable or to require the purchase of the Indebtedness evidenced
thereby prior to its stated maturity (unless such right shall
thereafter have been unconditionally waived prior to the time
such holder shall have declared such Indebtedness due and payable
or required the purchase of such Indebtedness); or
(g) The Parent or any of its Subsidiaries
shall (i) suspend or discontinue its business (except as may oth-
erwise be expressly permitted herein), or (ii) make an assignment
for the benefit of creditors, or (iii) generally not be paying
its debts as such debts become due, or (iv) admit in writing its
inability to pay its debts as they become due, or (v) file a
voluntary petition in bankruptcy, or (vi) become insolvent
(however such insolvency shall be evidenced), or (vii) file any
petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, or (viii) pe-
tition or apply to any tribunal for any receiver, custodian or
any trustee for any substantial part of its Property, or (ix) be
the subject of any such proceeding filed against it which remains
undismissed for a period of 45 days, or (x) file any answer
admitting or not contesting the material allegations of any such
petition filed against it, or of any order, judgment or decree
approving such petition in any such proceeding, or (xi) seek, ap-
prove, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator, or
fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains
unstayed and in effect for 45 days; or
(h) An order for relief is entered under
the bankruptcy or insolvency laws of any jurisdiction and
102
continues unstayed and in effect for a period of 60 days (i)
adjudging the Parent or any of its Subsidiaries as bankrupt or
insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or compo-
sition of, or in respect of the Parent or any of its Subsidiaries
under the bankruptcy or insolvency laws of any jurisdiction, or
(iii) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Parent
or any of its Subsidiaries or of any substantial part of the
Property of any thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Parent or any of its
Subsidiaries and any such decree or order continues unstayed and
in effect for a period of 60 days; or
(i) Judgments or decrees in an aggregate
amount in excess of $5,000,000 on a Consolidated basis against
the Parent or any of its Subsidiaries (except to the extent
covered by insurance, provided that each applicable insurance
company has expressly assumed responsibility with respect to the
applicable underlying claim) shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 30
days; or
(j) A Change of Control shall occur; or
(k) Any license, franchise, permit, right,
approval or agreement of the Parent or any of its Subsidiaries to
own or operate any Operating Entity owned or operated by the Par-
ent or such Subsidiary is not renewed, or is suspended or re-
voked, and the non-renewal, suspension or revocation is ir-
revocable and not subject to appeal or challenge and would have a
Material Adverse effect; or
(l) (i) any Termination Event shall occur
with respect to any Pension Plan (other than a Multiemployer
Plan); (ii) any Accumulated Funding Deficiency in excess of
$2,000,000, whether or not waived, shall exist with respect to
any Pension Plan (other than a Multiemployer Plan); (iii) any
Person shall engage in any Prohibited Transaction involving any
Employee Benefit Plan which would have a Material Adverse effect;
(iv) the Parent, any of its Subsidiaries or any ERISA Affiliate
shall fail to pay when due an amount which is payable by it to
the PBGC or to a Pension Plan (including a Multiemployer Plan)
under Title IV of ERISA and such non-payment would have a
Material Adverse effect; (v) the imposition of any tax under
Section 4980(B)(a) of the Code; (vi) the assessment of a civil
penalty with respect to any Employee Benefit Plan under Section
502(c) of ERISA; (vii) any other event or condition shall occur
or exist with respect to an Employee Benefit Plan which would
have a Material Adverse effect; (viii) a contribution required to
be made to a Foreign Pension Plan has not been timely made which
would have a Material Adverse effect; or (ix) the Parent or any
103
of its Subsidiaries has incurred or is likely to incur
liabilities pursuant to one or more Foreign Pension Plans which
would have a Material Adverse effect; or
(m) (i) Any Loan Document shall cease to
be in full force and effect, or an "Event of Default" shall have
occurred under, and as such term is defined therein, or (ii) the
failure of any Credit Party to observe or perform any obligation
on its part to be observed or performed under any Loan Document,
and such failure shall have continued unremedied for a period of
30 days after any Responsible Officer shall have become aware of
such failure, or any Credit Party shall disavow in writing any of
its obligations thereunder.
Upon the occurrence of an Event of Default
or at any time thereafter during the continuance thereof, (a) if
such event is an Event of Default specified in clause (g) or (h)
above, the Aggregate Commitments, the Swing Line Commitment, the
Individual Currency Commitments and the Letter of Credit Com-
mitment shall immediately and automatically terminate and the
Loans, all accrued and unpaid interest thereon, any reimbursement
obligations owing or contingently owing in respect of all
outstanding Letters of Credit and all other amounts owing under
the Loan Documents shall immediately become due and payable, and
the Parent and the applicable Letter of Credit Applicants shall
forthwith deposit an amount equal to the Letter of Credit Ex-
posure in a cash collateral account with and under the exclusive
control of the Administrative Agent, and the Administrative Agent
may, and, upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided in the
Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative
Agent may, and upon the direction of the Required Lenders shall,
by notice to the Parent (on behalf of all Borrowers), declare the
Aggregate Commitments, the Swing Line Commitment, the Individual
Currency Commitments and the Letter of Credit Commitment to be
terminated forthwith, whereupon the Aggregate Commitments, the
Swing Line Commitment, the Individual Currency Commitments and
the Letter of Credit Commitment shall immediately terminate, and
(ii) with the consent of the Required Lenders, the Administrative
Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Parent (on behalf of all Borrowers),
declare the Loans, all accrued and unpaid interest thereon, any
reimbursement obligations owing or contingently owing in respect
of all outstanding Letters of Credit and all other amounts owing
under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable, and
the Parent and the applicable Letter of Credit Applicants shall
forthwith deposit an amount equal to the Letter of Credit Ex-
posure in a cash collateral account with and under the exclusive
control of the Administrative Agent, and the Administrative Agent
104
may, and upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided pursuant
to the Loan Documents. Except as otherwise provided in this
Section, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
In the event that the Aggregate
Commitments, the Swing Line Commitment, the Individual Currency
Commitments and the Letter of Credit Commitment shall have been
terminated or the Loans shall have been declared due and payable
pursuant to the provisions of this Section, any funds received by
the Administrative Agent and the Lenders from or on behalf of any
Borrower shall be applied by the Administrative Agent and the
Lenders in liquidation of the Loans and the obligations of the
Credit Parties under the Loan Documents in the following manner
and order: (i) first, to the payment of interest on, and then the
principal portion of, any Loans which the Administrative Agent
may have advanced on behalf of any Lender for which the Admin-
istrative Agent has not then been reimbursed by such Lender or
the Credit Parties; (ii) second, to the payment of any expenses
due the Administrative Agent from the Credit Parties, (iii)
third, to reimburse the Administrative Agent and the Lenders for
any expenses (to the extent not paid pursuant to clause (ii)
above due from the Parent and the Borrowers pursuant to the
provisions of Section 11.5; (iv) fourth, to the payment of
accrued Facility Fees, Letter of Credit Commissions and all other
fees, expenses and amounts due under or in respect of the Loan
Documents (other than principal and interest on the Loans and
reimbursement obligations and interest thereon with respect to
the Letters of Credit); (v) fifth, to the payment of interest due
on the Loans and due on reimbursement obligations with respect to
the Letters of Credit; (vi) sixth, to the payment of principal
outstanding on the Loans and reimbursement obligations with
respect to the Letters of Credit; and (vii) seventh, to the pay-
ment of any other amounts owing to the Administrative Agent and
the Lenders under the Loan Documents.
X. THE ADMINISTRATIVE AGENT
A. Appointment
Each Lender hereby irrevocably designates
and appoints BNY as the Administrative Agent of such Lender under
the Loan Documents and each such Lender hereby irrevocably
authorizes BNY, as the Administrative Agent for such Lender, to
take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms
of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement or any Loan Document,
105
the Administrative Agent shall not have any duties or respon-
sibilities other than those expressly set forth herein or
therein, or any fiduciary relationship with the Issuing Bank, the
Swing Line Lender or any Lender, and no implied covenants, func-
tions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against the
Administrative Agent.
B. Delegation of Duties
The Administrative Agent may execute any
of its duties under the Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely upon the advice
of counsel concerning all matters pertaining to such duties.
C. Exculpatory Provisions
Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken
or omitted to be taken by it or such Person under or in con-
nection with the Loan Documents (except the Administrative Agent
for its own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Credit
Parties or any officers of the Credit Parties contained in the
Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Administrative Agent under or in connection with, the Loan
Documents or for the value, validity, effectiveness, genuineness,
perfection, enforceability or sufficiency of any of the Loan
Documents or for any failure of the Credit Parties or any other
Person to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or per-
formance of any of the agreements contained in, or conditions of,
the Loan Documents, or to inspect the properties, books or
records of the Credit Parties. The Administrative Agent shall
not be under any liability or responsibility whatsoever, as
Administrative Agent, to the Credit Parties or any other Person
as a consequence of any failure or delay in performance, or any
breach, by any Lender of any of its obligations under the Loan
Documents.
D. Reliance by Administrative Agent
The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writ-
ing, resolution, notice, consent, certificate, affidavit,
opinion, letter, cablegram, telegram, fax, telex or teletype
message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed,
106
sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to any of the
Credit Parties), independent accountants and other experts se-
lected by the Administrative Agent. The Administrative Agent may
treat each Lender, or the Person designated in the last notice
filed with it under this Section, as the holder of all of the
interests of such Lender in its Loans until written notice of
transfer, signed by such Lender (or the Person designated in the
last notice filed with the Administrative Agent) and by the
Person designated in such written notice of transfer, in form and
substance satisfactory to the Administrative Agent, shall have
been filed with the Administrative Agent. The Administrative
Agent shall not be under any duty to examine or pass upon the
validity, effectiveness, enforceability, perfection or genuine-
ness of any of the Loan Documents or any instrument, document or
communication furnished pursuant hereto or thereto or in
connection herewith or therewith, and the Administrative Agent
shall be entitled to assume that the same are valid, effective
and genuine, have been signed or sent by the proper parties and
are what they purport to be. The Administrative Agent shall be
fully justified in failing or refusing to take any action under
the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in
accordance with a request or direction of the Required Lenders,
and such request or direction and any action taken or failure to
act pursuant thereto shall be binding upon the Issuing Bank, the
Swing Line Lender and all of the Lenders and all future holders
of the Indebtedness of the Credit Parties under the Loan
Documents.
E. Notice of Default
The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless the Administrative Agent has
received written notice thereof from the Issuing Bank, the Swing
Line Lender, any Lender, or any Credit Parties. In the event
that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the
Issuing Bank, the Swing Line Lender and the Lenders. The Adminis-
trative Agent shall take such action with respect to such Default
or Event of Default as shall be directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem to be in the best interests of the
Issuing Bank, the Swing Line Lender and the Lenders.
F. Non-Reliance
107
The Issuing Bank, the Swing Line Lender
and each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, di-
rectors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by
the Administrative Agent hereinafter, including any review of the
affairs of the Credit Parties, shall be deemed to constitute any
representation or warranty by the Administrative Agent to the
Issuing Bank, the Swing Line Lender or any Lender. The Issuing
Bank, the Swing Line Lender and each Lender represents to the Ad-
ministrative Agent that it has, independently and without re-
liance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed ap-
propriate, made its own evaluation of and investigation into the
business, operations, Property, financial and other condition and
creditworthiness of the Credit Parties and made its own decision
to enter into this Agreement. The Issuing Bank, the Swing Line
Lender and each Lender also represents that it will,
independently and without reliance upon the Administrative Agent,
the Issuing Bank, the Swing Line Lender or any other Lender, and
based on such documents and information as it shall deem ap-
propriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under
the Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, Prop-
erty, financial and other condition and creditworthiness of the
Credit Parties. Except for notices, reports and other documents
expressly required to be furnished to the Issuing Bank, the Swing
Line Lender and the Lenders by the Administrative Agent under the
Loan Documents, the Administrative Agent shall not have any duty
or responsibility to provide the Issuing Bank, the Swing Line
Lender or any Lender with any credit or other information con-
cerning the business, operations, Property, financial and other
condition or creditworthiness of the Credit Parties which may
come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
G. Indemnification
Each Lender agrees to indemnify and
reimburse the Administrative Agent in its capacity as such (to
the extent not promptly reimbursed by the Credit Parties and
without limiting the obligation of the Credit Parties to do so),
pro rata according to (i) at any time when no Loans are
outstanding, its Commitment Percentage, or if no Commitments then
exist, its Commitment Percentage on the last day on which
Commitments did exist, and (ii) at any time when Loans are
outstanding (x) if the Commitments then exist, its Commitment
Percentage or (y) if the Commitments have been terminated or
otherwise no longer exist, the percentage equal to the fraction
(A) the numerator of which is the Credit Exposure of such Lender
108
and (B) the denominator of which is the Aggregate Credit
Exposure, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever including any
amounts paid to the Lenders (through the Administrative Agent) by
the Credit Parties pursuant to the terms of the Loan Documents,
that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including at any
time following the payment of the Loans or the reimbursement
obligations hereunder with respect to the Letters of Credit) be
imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to herein or
the transactions contemplated hereby or thereby or any action
taken or omitted to be taken by the Administrative Agent under or
in connection with the foregoing; provided, however, that no
Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent
resulting from the finally adjudicated gross negligence or will-
ful misconduct of the Administrative Agent. Without limitation
of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its pro rata share
(calculated as set forth in the first sentence of this Section)
of any unpaid costs and expenses (including reasonable fees and
expenses of counsel) payable by the Credit Parties under Section
11.5, to the extent that the Administrative Agent has not been
reimbursed for such costs and expenses by the Credit Parties.
The failure of any Lender to reimburse the Administrative Agent
promptly upon demand for its pro rata share (as so calculated) of
any amount required to be paid by the Lenders to the Administra-
tive Agent as provided in this Section shall not relieve any
other Lender of its obligation hereunder to reimburse the Ad-
ministrative Agent for its pro rata share (as so calculated) of
such amount, but no Lender shall be responsible for the failure
of any other Lender to reimburse the Administrative Agent for
such other Lender's pro rata share (as so calculated) of such
amount. The agreements in this Section shall survive the payment
of all amounts payable under the Loan Documents.
H. Administrative Agent in Its Individual
Capacity
BNY and its affiliates may make loans to,
accept deposits from, issue letters of credit for the account of,
and generally engage in any kind of business with, the Credit
Parties or any of the Subsidiaries of the Parent as though BNY
were not the Issuing Bank, the Swing Line Lender or the Admin-
istrative Agent hereunder. With respect to the Commitment, the
Swing Line Commitment, the Individual Currency Commitment and the
Letter of Credit Commitment of BNY and the Loans made by BNY, and
the Letters of Credit issued by BNY, BNY shall have the same
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rights and powers under the Loan Documents as any Lender and may
exercise the same as though it were not the Issuing Bank, the
Swing Line Lender or the Administrative Agent, and the terms
"Lender" and "Lenders" shall in each case include BNY.
I. Successor Administrative Agent
If at any time the Administrative Agent
deems it advisable, in its sole discretion, it may submit to each
of the Issuing Bank, the Swing Line Lender and each Lender a
written notice of its resignation as Administrative Agent under
the Loan Documents, such resignation to be effective upon the
written acceptance of the duties of the Administrative Agent
under the Loan Documents by a successor Administrative Agent
appointed by the Required Lenders, provided, however, that if no
such appointment is made and given within 30 days after the
delivery of such notice of resignation, the Administrative Agent
shall have the right to appoint a successor Administrative Agent.
A successor Administrative Agent shall be a commercial bank orga-
nized under the laws of the United States of America or any State
thereof and having a combined capital, surplus, and undivided
profits of at least $500,000,000 and, provided that no Default or
Event of Default shall exist, shall be reasonably satisfactory to
the Parent. Upon the acceptance of any appointment as Ad-
ministrative Agent hereunder by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and du-
ties of the retiring Administrative Agent, and the retiring
Administrative Agent's rights, powers, privileges and duties as
Administrative Agent under the Loan Documents shall be termi-
nated. The Credit Parties, the Issuing Bank, the Swing Line
Lender and the Lenders shall execute such documents as shall be
necessary to effect such appointment. After any retiring
Administrative Agent's resignation as Administrative Agent, the
provisions of the Loan Documents shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
XI. OTHER PROVISIONS
A. Amendments and Waivers
(a) With the written consent of the
Required Lenders, the Administrative Agent, the Parent and the
other appropriate Credit Parties may, from time to time, enter
into written amendments, supplements or modifications of any of
the Loan Documents and, with the consent of the Required Lenders,
the Administrative Agent on behalf of the Issuing Bank, the Swing
Line Lender and the Lenders may execute and deliver to any such
parties a written instrument waiving or granting a consent to a
departure from, on such terms and conditions as the
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Administrative Agent may specify in such instrument, any of the
requirements of any of the Loan Documents or any Default or Event
of Default and its consequences; provided, however, that:
(i) no such amendment, supplement,
modification, waiver or consent shall increase or decrease the
Commitment of any Lender without the consent of such Lender, or
increase or decrease any Individual Currency Commitment of any
Lender without the consent of such Lender;
(ii) without the consent of all of the
Lenders, (A) extend the Maturity Date, (B) decrease the rate or
extend the time of payment of interest of, or extend the time of
payment or forgive the principal amount of, or change the pro
rata allocation of payments under, any Loan or reimbursement
obligation with respect to any Letter of Credit, (C) decrease or
extend the time of payment of the Facility Fee or Letter of
Credit Commissions, (D) change the provisions of Sections 2.14,
11.1 or 11.7(a), (E) change the definition of Required Lenders,
(F) change the definition of Core Currencies so as to add any
additional currency as a Core Currency, (G) release the Guaranty,
(H) change the several nature of the obligations of the Lenders
under the Loan Documents, or (I) increase the Aggregate
Commitments to an amount in excess of $160,000,000;
(iii) without the written consent of the
Issuing Bank, no such amendment, supplement, modification or
waiver shall change the Letter of Credit Commitment, change the
amount or the time of payment of the Letter of Credit Commis-
sions, or change any other term or provision which relates to the
Letter of Credit Commitment or the Letters of Credit;
(iv) without the written consent of the
Swing Line Lender, no such amendment, supplement, modification or
waiver shall change the Swing Line Commitment, change the amount
or the time of payment of the Swing Line Loans or interest
thereon or change any other term or provision which relates to
the Swing Line Commitment or the Swing Line Loans; and
(v) without the written consent of the
Administrative Agent, no such amendment, supplement, modification
or waiver shall amend, modify or waive any provision of Section
10 or otherwise change any of the rights or obligations of the
Administrative Agent under the Loan Documents.
(b) Notwithstanding anything to the
contrary contained herein, the Parent may at any time or from
time to time, at the Parent's sole cost and expense, request any
Lender to increase its Commitment, or any other bank, insurance
company, pension fund, mutual fund or other financial institution
(each a "Proposed Lender"; each such Proposed Lender to be
reasonably satisfactory to the Swing Line Lender and the Issuing
111
Bank) to provide a new Commitment, by submitting a supplement to
this Agreement to the Administrative Agent, the Issuing Bank, the
Swing Line Lender and the Credit Parties. If such supplement is
in all respects satisfactory to it, the Administrative Agent, the
Issuing Bank, the Swing Line Lender, the Parent, each other
Credit Party and such Lender or Proposed Lender, as the case may
be, shall each execute a copy thereof and deliver a copy thereof
to the Administrative Agent, the Parent and such Lender or such
Proposed Lender, as the case may be. Upon execution and delivery
of such supplement, (i) in the case of such Lender, the amount of
such Lender's Commitment shall be increased to the amount set
forth in such supplement, (ii) in the case of such Proposed
Lender, such Proposed Lender shall become a party hereto and
shall for all purposes of this Agreement and the other Loan
Documents be deemed a "Lender" with a Commitment and one or more
Individual Currency Commitments in the respective amounts set
forth in such supplement and (iii) in each case, the Commitments
and the Commitment Percentages set forth in Exhibit A-1 and the
Individual Commitments set forth in Exhibit A-2 shall be adjusted
accordingly by the Administrative Agent and a new Exhibit A-1 and
a new Exhibit A-2 shall be distributed by the Administrative
Agent to the Parent (on behalf of all Borrowers) and each Lender;
provided, however, that:
(x) immediately after giving effect
thereto, the Aggregate Commitments shall not exceed $160,000,000;
and
(y) notwithstanding anything to the
contrary contained in Section 11.7, if immediately after giving
effect to the events described in Sections 11.1(b)(i) or
11.1(b)(ii), as the case may be, Revolving Loans shall or would
be outstanding, then such Lender or such Proposed Lender, as the
case may be, shall enter into a master assignment and acceptance
agreement with the other Lenders in all respects reasonably
satisfactory to the other Lenders, pursuant to which each other
Lender shall sell, assign, transfer and negotiate to it a portion
of its Revolving Loans necessary to reflect the Commitments as
adjusted in accordance with Section 11.1(b)(iii).
(c) Any such amendment, supplement,
modification or waiver pursuant to this Section 11.1 shall be
binding upon the parties to the applicable agreement, all present
and future Lenders and the Administrative Agent. In the case of
any waiver, the parties to the Loan Documents, the Issuing Bank,
the Swing Line Lender, the Lenders and the Administrative Agent
shall be restored to their former position and rights thereunder
to the extent provided for in such waiver, and any Default or
Event of Default waived shall not extend to any subsequent or
other Default or Event of Default, or impair any right consequent
thereon. The Loan Documents may not be amended orally or by any
course of conduct.
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(d) If any assignment made pursuant to
subsection (b)(y) above shall be made to any Proposed Lender and
such Proposed Lender is not a U.S. Person, such Proposed Lender
shall furnish such certificates, documents or other evidence to
the Parent, the Borrowers, the Lenders and the Administrative
Agent as shall be required by Section 2.13(e) or 2.13(f).
B. Notices
All notices and other communications under
the Loan Documents shall be given to the parties hereto at the
following addresses:
(i) if to the Parent or a Borrower, at its
Address for Notices set forth on Exhibit S or as set forth on the
applicable Borrower Addendum;
(ii) if to any Lender, at its Address
for Notices set forth on Exhibit R;
(iii) if to the Administrative Agent, at
its Address for Notices set forth on Exhibit Q;
(iv) if to the Swing Line Lender, at its
Address for Notices set forth on Exhibit R;
(v) if to the Issuing Bank, at its Address
for Notices set forth on Exhibit R;
or in any of the foregoing cases at such other address and/or to
such other Person as a party hereto may hereafter specify for
that purpose by written notice to the Parent, the Borrowers and
the Administrative Agent. Such notices and other communications
will be effective only if and when given in writing, and shall be
deemed to have been given three (3) days after deposit in the
mail, designated as certified mail, return receipt requested,
postage-prepaid, at the applicable address specified above, or
when delivered at the applicable address specified above, or when
sent by telecopy addressed to the party to which such notice is
directed at its address determined as provided above and receipt
is confirmed, except that any notice, request or demand by the
Parent or any Borrower to or upon the Administrative Agent, the
Swing Line Lender, the Issuing Bank or the Lenders pursuant to
Sections 2.3, 2.6, 2.9, 2.10, 2.11, 2.12 or 2.19 shall not be
effective until received. Any party to a Loan Document may rely
on signatures of the parties thereto which are transmitted by fax
or other electronic means as fully as if originally signed.
C. No Waiver; Cumulative Remedies
No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Swing
113
Line Lender, the Issuing Bank or any Lender, any right, remedy,
power or privilege under the Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under the Loan Documents
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
D. Survival of Representations and Warranties
All representations and warranties made
under the Loan Documents and in any document, certificate or
statement delivered pursuant thereto or in connection therewith
shall survive the execution and delivery thereof.
E. Payment of Expenses and Taxes
The Parent and each Borrower (to the
extent of such other Borrower's Proportionate Share of the amount
at issue) severally agrees, promptly upon presentation of a
statement or invoice therefor, and whether any Loan is made, or
any Letter of Credit is issued (i) to pay or reimburse the
Administrative Agent for all of the Administrative Agent's
out-of-pocket costs and expenses reasonably incurred in con-
nection with the preparation of the Loan Documents and any
amendment, supplement or modification (whether or not executed)
to the Loan Documents, any documents prepared in connection
therewith and the consummation of the transactions contemplated
thereby, including the reasonable fees and disbursements of
Special Counsel, (ii) to pay or reimburse the Administrative
Agent, the Issuing Bank, the Swing Line Lender and the Lenders
for all of their respective costs and expenses, including reason-
able fees and disbursements of counsel, incurred in connection
with (A) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether con-
summated or not) of the obligations of the Parent and the
Borrowers under the Loan Documents and (B) the enforcement of
this Section, (iii) to pay, indemnify, and hold each Lender, the
Swing Line Lender, the Issuing Bank and the Administrative Agent
harmless from and against, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of
any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or
in respect of, the Loan Documents and any such other documents,
and (iv) to pay, indemnify and hold each Lender, the Swing Line
Lender, the Issuing Bank and the Administrative Agent and each of
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their respective officers, directors and employees harmless from
and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever
(including reasonable counsel fees and disbursements) with
respect to the enforcement and performance of the Loan Documents
and the use of the proceeds of the Loans and the Letters of
Credit (all the foregoing, collectively, the "indemnified li-
abilities"); provided, however, that neither the Parent nor the
Borrowers shall have any obligation hereunder to pay indemnified
liabilities to the Administrative Agent, the Swing Line Lender,
the Issuing Bank or any Lender arising from the finally adju-
dicated gross negligence or willful misconduct of the
Administrative Agent, the Swing Line Lender, the Issuing Bank or
such Lender or claims between one indemnified party and another
indemnified party. The agreements in this Section shall survive
the termination of the Aggregate Commitments, the Swing Line
Commitment, the Letter of Credit Commitment and the Individual
Currency Commitments and the payment of all amounts payable under
the Loan Documents.
F. Determination of Dollar Equivalent
For purposes of the Loan Documents, the
Dollar Equivalent of each Alternate Currency Loan and each Letter
of Credit designated in an Alternate Currency shall be
recalculated (i) on the first day of each Borrowing/Issuance
Period, (ii) on the date that the Agent shall have received a Bid
Accept/Reject Letter accepting a Bid or a Negotiated Rate
Confirmation, (iii) on each date that the Aggregate Commitments
are, or the Swing Line Commitment or any Individual Currency
Commitment is, reduced and (iv) on the last Business Day of each
month unless the Dollar Equivalent was recalculated pursuant to
clause (i), (ii) or (iii) during such month. The Dollar
Equivalent for each Alternate Currency Loan and each Letter of
Credit designated in an Alternate Currency shall remain in effect
until the same is recalculated by the Administrative Agent as
provided above and notice of such recalculation is received by
the Parent, it being understood that until such notice is re-
ceived, the Dollar Equivalent shall be that Dollar Equivalent.
The Administrative Agent shall promptly notify the Parent, the
Issuing Bank, the Swing Line Lender and the Lenders of each such
determination of the Dollar Equivalent for each Alternate Cur-
rency Loan and each Letter of Credit designated in an Alternate
Currency.
G. Assignments and Participations
(a) This Agreement and the other Loan
Documents shall be binding upon and inure to the benefit of the
Parent, the Borrowers, the Lenders, the Swing Line Lender, the
Issuing Bank, the Administrative Agent, and their respective
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successors and assigns, except that neither the Parent nor the
Borrowers may assign, delegate or transfer any of their rights or
obligations under the Loan Documents without the prior written
consent of the Administrative Agent, the Issuing Bank, the Swing
Line Lender and each Lender.
(b) Except as provided in Section 11.1(b),
each Lender shall have the right at any time, upon written notice
to the Administrative Agent of its intent to do so, to sell,
assign, transfer or negotiate all or any part of such Lender's
rights and obligations under the Loan Documents to one or more of
its affiliates, to one or more of the other Lenders (or to
affiliates of such other Lenders) or, with the prior written con-
sent of the Parent, the Swing Line Lender and the Issuing Bank
(which consents shall not be unreasonably withheld), to sell, as-
sign, transfer or negotiate all or any part of such Lender's
rights and obligations under the Loan Documents to any other
bank, insurance company, pension fund, mutual fund or other
financial institution, provided that (i) each such sale, assign-
ment, transfer or negotiation (other than sales, assignments,
transfers or negotiations (x) to affiliates of such Lender or (y)
of a Lender's entire interest) shall be in a minimum amount of
$5,000,000, and (ii) there shall be paid to the Administrative
Agent by the assigning or assignee Lender a fee (the "Assignment
Fee") of $3,000. For each assignment, the parties to such
assignment shall execute and deliver to the Administrative Agent
for its acceptance and recording an Assignment and Acceptance
Agreement. Upon such execution, delivery, acceptance and record-
ing by the Administrative Agent, from and after the effective
date specified in such Assignment and Acceptance Agreement, the
assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance Agreement, the as-
signor Lender thereunder shall be released from its obligations
under the Loan Documents. Upon any such sale, assignment or
other transfer, the Commitments and the Commitment Percentages
set forth in Exhibit A-1, and the Individual Currency Commitments
set forth in Exhibit A-2, shall be adjusted accordingly by the
Administrative Agent and a new Exhibit A-1 and a new Exhibit A-2
shall be distributed by the Administrative Agent to the Parent
(on behalf of all Borrowers) and each Lender.
(c) Each Lender may grant participations
in all or any part of its rights and obligations under the Loan
Documents to one or more of its affiliates, to one or more of the
other Lenders (or to affiliates of such other Lenders) or to one
or more other banks, insurance companies, pension funds, mutual
funds or other financial institutions, provided that (i) such
Lender's obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties to the Loan Documents for the performance of
such obligations, (iii) the Borrowers, the Administrative Agent,
the Swing Line Lender, the Issuing Bank and the other Lenders
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shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the
Loan Documents, (iv) no sub-participations shall be permitted and
(v) the voting rights of any holder of any participation shall be
limited to decisions that in accordance with Section 11.1 require
the consent of all of the Lenders. The Parent and the Borrowers
acknowledge and agree that any such participant shall for pur-
poses of Sections 2.13, 2.14, 2.15, 2.22, 11.5 and 11.10, be
deemed to be a "Lender"; provided, however, neither the Parent
nor the Borrowers shall, at any time, be obligated to pay any
participant in any interest of any Lender hereunder any sum in
excess of the sum which the Parent and the Borrowers would have
been obligated to pay to such Lender in respect of such interest
had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant
to subsection (b) above or (ii) any participation is granted
pursuant to subsection (c) above, shall be made to any Person
that is not a U.S. Person, such Person shall furnish such
certificates, documents or other evidence to the Parent, the
Borrowers and the Administrative Agent, in the case of clause (i)
and to the Parent, the Borrowers and the Lender which sold such
participation in the case of clause (ii), as shall be required by
Section 2.13(e) or 2.13(f).
(e) No Lender shall, as between and among
the Parent, the Borrowers, the Administrative Agent, the Swing
Line Lender, the Issuing Bank and such Lender, be relieved of any
of its obligations under the Loan Documents as a result of any
sale, assignment, transfer or negotiation of, or granting of par-
ticipations in, all or any part of its rights and obligations
under the Loan Documents, except that a Lender shall be relieved
of its obligations under the Loan Documents to the extent of any
such sale, assignment, transfer, or negotiation of all or any
part of its obligations under the Loan Documents pursuant to
subsection (b) above.
(f) Notwithstanding anything to the
contrary contained in this Section, any Lender may at any time or
from time to time assign all or any portion of its rights under
the Loan Documents to a Federal Reserve Bank, provided that any
such assignment shall not release such assignor from its obli-
gations thereunder.
H. Counterparts
Each of the Loan Documents may be executed
by one or more of the parties thereto on any number of separate
counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same document. It shall not be
necessary in making proof of any Loan Document to produce or ac-
count for more than one counterpart signed by the party to be
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charged. An executed counterpart of any Loan Document and of any
amendment, modification, consent or waiver thereto or thereof
transmitted by fax shall be deemed to be an originally executed
counterpart. A copy of any Loan Document signed by all the par-
ties thereto shall be deposited with the Parent (on behalf of all
Borrowers) and the Administrative Agent. Any party to any Loan
Document may rely upon the signatures of any other party thereto
which are transmitted by fax or other electronic means to the
same extent as if originally signed.
I. Adjustments; Set-off
(a) If any Lender (a "Benefited Lender")
shall at any time receive any payment of all or any part of its
Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in
Section 9.1 (g) or (h), or otherwise) in a greater proportion
than any such payment to and collateral received by any other
Lender in respect of such other Lender's Loans, or interest
thereon, such Benefited Lender shall purchase for cash from each
of the other Lenders such portion of each such other Lender's
Loans, and shall provide each of such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders, provided, however, that if all or any
portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Borrowers
agree that each Lender so purchasing a portion of another
Lender's Loans may exercise all rights of payment (including
rights of set-off, to the extent not prohibited by law) with
respect to such portion as fully as if such Lender were the
direct holder of such portion.
(b) In addition to any rights and remedies
of the Lenders provided by law, upon the occurrence of an Event
of Default and the acceleration of the obligations owing in con-
nection with the Loan Documents, or at any time upon the occur-
rence and during the continuance of an Event of Default, under
Section 9.1(a), (b), (g) or (h), each Lender shall have the
right, without prior notice to the Parent or the Borrowers, any
such notice being expressly waived by the Parent and the
Borrowers to the extent not prohibited by applicable law, to set-
off and apply against any indebtedness, whether matured or
unmatured, of the Parent or the Borrowers to such Lender, any
amount owing from such Lender to the Parent or the Borrowers, at,
or at any time after, the happening of any of the above-mentioned
events. To the extent not prohibited by applicable law, the
aforesaid right of set-off may be exercised by such Lender
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against the Parent and the Borrowers or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or at-
tachment creditor of the Parent or the Borrowers, or against
anyone else claiming through or against the Parent or the
Borrowers or such trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by
such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, as-
signment for the benefit of creditors, appointment or application
for the appointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to
notify the Parent, the Borrowers and the Administrative Agent
after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect
the validity of such set-off and application. With respect to
each Borrower, the right of set-off provided for in this Section
11.9(b) shall be limited to the obligations of such Borrower with
respect to Loans made to it and to its Proportionate Share of
other costs, expenses and other amounts.
J. Indemnity
Each of the Borrowers to the extent of its
Proportionate Share and the Parent severally agree to indemnify
and hold harmless the Administrative Agent, the Swing Line
Lender, the Issuing Bank and each Lender and their respective
affiliates, directors, officers, employees, attorneys and agents
(each an "Indemnified Person") with respect to each Indemnified
Person's status under the Loan Documents from and against any
loss, cost, liability, damage or expense (including the rea-
sonable fees and disbursements of counsel of such Indemnified
Person, including all local counsel hired by any such counsel)
incurred by such Indemnified Person in investigating, preparing
for, defending against, or providing evidence, producing
documents or taking any other action in respect of, any commenced
or threatened litigation, administrative proceeding or
investigation under any federal securities law or any other
statute of any jurisdiction, or any regulation, or at common law
or otherwise, which is alleged to arise out of or is based upon
(i) any untrue statement or alleged untrue statement of any
material fact by the Parent or the Borrowers in any document or
schedule executed or filed with any Governmental Authority by or
on behalf of the Parent or the Borrowers; (ii) any omission or
alleged omission to state any material fact required to be stated
in such document or schedule, or necessary to make the statements
made therein, in light of the circumstances under which made, not
misleading; (iii) any acts, practices or omissions or alleged
acts, practices or omissions of the Parent or the Borrowers or
their respective agents relating to the use of the proceeds of
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any or all borrowings made by the Borrowers which are alleged to
be in violation of Section 2.18, or in violation of any federal
securities law or of any other statute, regulation or other law
of any jurisdiction applicable thereto; or (iv) any acquisition
or proposed acquisition by the Parent or the Borrowers of all or
a portion of the Stock, or all or a portion of the assets, of any
Person whether such Indemnified Person is a party thereto. The
indemnity set forth herein shall be in addition to any other
obligations or liabilities of the Parent and the Borrowers to
each Indemnified Person under the Loan Documents or at common law
or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Commitments, the Letter of
Credit Commitment, the Swing Line Commitment, the Individual
Currency Commitments, and the payment of all indebtedness of the
Parent and the Borrowers under the Loan Documents, provided that
the Parent and the Borrowers shall have no obligation under this
Section to an Indemnified Person with respect to any of the
foregoing to the extent found in a final judgment of a court
having jurisdiction to have resulted out of the gross negligence
or wilful misconduct of such Indemnified Person or arising from
claims between one such Indemnified Person and another such
Indemnified Person.
K. GOVERNING LAW
THE LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES THERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
L. Severability
Every provision of this Agreement and the
other Loan Documents is intended to be severable, and if any term
or provision hereof or thereof shall be invalid, illegal or unen-
forceable for any reason, the validity, legality and enforce-
ability of the remaining provisions hereof or thereof shall not
be affected or impaired thereby, and any invalidity, illegality
or unenforceability in any jurisdiction shall not affect the
validity, legality or enforceability of any such term or
provision in any other jurisdiction.
M. Integration
All exhibits to this Agreement and any
other Loan Document shall be deemed to be a part hereof or
thereof, as the case may be. Except for agreements between the
Administrative Agent, the Swing Line Lender, the Issuing Bank and
the Parent with respect to certain fees, the Loan Documents
embody the entire agreement and understanding among the Parent,
the Borrowers, the Administrative Agent, the Swing Line Lender,
the Issuing Bank and the Lenders with respect to the subject
120
matter thereof and supersede all prior agreements and under-
standings among the Parent, the Borrowers, the Administrative
Agent, the Swing Line Lender, the Issuing Bank and the Lenders
with respect to the subject matter thereof.
N. Judgment Currency
(a) Each Credit Party's obligations under
the Loan Documents to make payments in the Applicable Currency
(the "Obligation Currency") shall not be discharged or satisfied
by any tender or recovery pursuant to any judgment expressed in
or converted into any currency other than the Obligation Cur-
rency, except to the extent that, on the Business Day immediately
following the date of such tender or recovery, the Administrative
Agent, the Swing Line Lender, the Issuing Bank or the applicable
Lender, as the case may be, may, in accordance with normal
banking procedures, purchase the Obligation Currency with such
other currency. If for the purpose of obtaining or enforcing
judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into any currency
other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made at the
rate of exchange at which, in accordance with normal banking
procedures in the relevant jurisdiction, the Obligation Currency
could be purchased with the Judgment Currency as of the day im-
mediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Cur-
rency Conversion Date").
(b) If the amount of Obligation Currency
purchased pursuant to the last sentence of subsection (a) above
is less than the sum originally due in the Obligation Currency,
the applicable Credit Party covenants and agrees to indemnify the
applicable recipient against such loss, and if the Obligation
Currency so purchased exceeds the sum originally due to such
recipient, such recipient agrees to remit to the applicable
Credit Party such excess.
O. Confidentiality
Any information disclosed by any Credit
Party to the Administrative Agent or any of the Lenders shall be
used solely for purposes of the Loan Documents and not in any
other manner detrimental to the Parent and, if such information
is not otherwise in the public domain, shall not be disclosed by
the Administrative Agent or such Lender to any other Person
except (i) to its independent accountants, legal counsel and
affiliates (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of
such information and instructed to keep such information
confidential), (ii) pursuant to statutory and regulatory
121
requirements or the request of bank examiners, (iii) pursuant to
any mandatory court order, subpoena or other legal process, (iv)
to the Administrative Agent, the Issuing Bank, the Swing Line
Lender or any other Lender, (v) pursuant to any agreement
heretofore or hereafter made between such Lender and the Parent
which permits such disclosure, (vi) in connection with the
exercise of any remedy under the Loan Documents or (vii) subject
to an agreement containing provisions substantially the same as
those of this Section, to any participant in or assignee of, or
prospective participant in or assignee of, any Loan, Letter of
Credit Commitment, Individual Currency Commitment or Commitment
(it being understood that prior to any such disclosures
contemplated by clauses (ii) and (iii) above, the Agent or such
Lender shall, if practicable, give the Parent prior written
notice of such disclosure).
P. CONSENT TO JURISDICTION
EACH CREDIT PARTY HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN THE CITY OF NEW YORK OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS. EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED OR NOT PROHIBITED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Q. Service of Process
Each Credit Party hereby irrevocably
consents to the service of process in any suit, action or
proceeding by sending the same by certified mail, return receipt
requested or by overnight courier service, to the address of such
Credit Party set forth in Section 11.2.
R. No Limitation on Service or Suit
Nothing in the Loan Documents or any
modification, waiver, consent or amendment thereto shall affect
the right of the Administrative Agent, the Swing Line Lender, the
Issuing Bank or any Lender to serve process in any manner permit-
ted by law or limit the right of the Administrative Agent, the
Swing Line Lender, the Issuing Bank or any Lender to bring
proceedings against any Credit Party in the courts of any
jurisdiction or jurisdictions in which such Credit Party may be
served.
S. WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE
122
SWING LINE LENDER, THE ISSUING BANK, THE LENDERS AND EACH CREDIT
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY.
T. International Banking Facilities
The Parent and the Borrowers acknowledge
that some or all of the Lenders may, in connection with the Loan
Documents, utilize an International banking facility (as defined
in Regulation D).
Each Borrower which is an entity located
outside the United States, understands that it is the policy of
the Board of Governors of the Federal Reserve System that
deposits received by International banking facilities may be used
only to support the non-U.S. operations of a depositor (or its
foreign affiliates) located outside the United States and that
extensions of credit by International banking facilities may be
used only to finance the non-U.S. operations of a customer (or
its foreign affiliates) located outside the United States.
Each Borrower which is an entity located
outside the United States acknowledges that the proceeds of its
borrowings hereunder from an International banking facility will
be used solely to finance its operations outside the United
States, or that of its foreign affiliates.
123
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year
first above written.
TIFFANY & CO.,
a Delaware corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY AND COMPANY,
a New York corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. INTERNATIONAL,
a Delaware corporation
By: ________________________
Name: ________________________
Title: ________________________
SOCIETE FRANCAISE POUR LE DEVELOPPMENT DE LA
PORCELAINE D'ART (S.A.R.L.), a French
corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. OF NEW YORK LIMITED, a Hong Kong
corporation
By: ________________________
Name: ________________________
Title: ________________________
124
TIFFANY-FARAONE S.P.A.,
an Italian corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. JAPAN INC.,
a Delaware corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. PTE. LTD.,
a Singapore corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO.,
a United Kingdom corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. WATCH FACTORY S.A.,
a Swiss corporation
By: ________________________
Name: ________________________
Title: ________________________
125
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year
first above written.
THE BANK OF NEW YORK,
as the Swing Line Lender, as the Issuing Bank,
as a Lender, as Arranging Agent and as Adminis-
trative Agent
By: ________________________
Name: ________________________
Title: ________________________
126
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year
first above written.
CHEMICAL BANK
By: ________________________
Name: ________________________
Title: ________________________
127
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year
first above written.
CREDIT SUISSE
By: ________________________
Name: ________________________
Title: ________________________
128
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year
first above written.
THE DAI-ICHI KANGYO BANK, LIMITED (NEW YORK
BRANCH)
By: ________________________
Name: ________________________
Title: ________________________
129
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year
first above written.
THE FUJI BANK, LTD.
By: ________________________
Name: ________________________
Title: ________________________
130
TIFFANY EXHIBIT A-1
LIST OF COMMITMENTS
Commitment
Lender Commitment Percentage
-------------------------- ------------------ -------------
The Bank of New York $30,000,000.00 0.23076924
Chemical Bank 25,000,000.00 0.19230769
Credit Suisse 25,000,000.00 0.19230769
The Dai-Ichi Kangyo Bank,
Limited (New York Branch) 25,000,000.00 0.19230769
The Fuji Bank, Limited 25,000,000.00 0.19230769
TOTAL $130,000,000.00 100%
=============== =====
131
TIFFANY EXHIBIT A-2
LIST OF INDIVIDUAL CURRENCY COMMITMENTS
Australian Dollars
-------------------
Lender Individual Currency Commitment
Dai-Ichi Kangyo $3,000,000.00
Fuji Bank $3,000,000.00
Canadian Dollars
-----------------
Lender Individual Currency Commitment
Credit Suisse $5,000,000.00
Hong Kong Dollars
------------------
Lender Individual Currency Commitment
BNY $3,000,000.00
Italian Lira
--------------
Lender Individual Currency Commitment
Chemical Bank $3,000,000.00
Credit Suisse $5,000,000.00
Korean Won
--------------
Lender Individual Currency Commitment
BNY $3,000,000.00
Malaysian Ringgit
------------------
Lender Individual Currency Commitment
- -
Mexican Pesos
-------------------
Lender Individual Currency Commitment
- -
New Taiwan Dollars
-------------------
Lender Individual Currency Commitment
BNY $3,000,000.00
132
Philippine Pesos
-----------------
Lender Individual Currency Commitment
- -
Singapore Dollars
------------------
Lender Individual Currency Commitment
BNY $3,000,000.00
Swiss Francs
--------------------
Lender Individual Currency Commitment
Chemical Bank $3,000,000.00
Credit Suisse $5,000,000.00
Thai Baht
---------------------
Lender Individual Currency Commitment
- -
133