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
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).
"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.
"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
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, ini-
tially, the office, branch or affiliate of such Lender desig-
nated as such Lender's lending office for Revolving Loans in
such Core Currency on Exhibit R, and thereafter, such other
office, branch or affiliate of such Lender through which it
shall be making or maintaining Revolving Loans in such Core
Currency, as reported by such Lender to the Administrative
Agent and the Parent, (ii) as to the Swing Line Lender, with
respect to Swing Line Loans in any Core Currency, initially,
the office, branch or affiliate of such Lender designated as
the Swing Line Lender's lending office for such Swing Line
Loans in such Core Currency on Exhibit R, and thereafter,
such other office, branch or affiliate of the Swing Line
Lender through which it shall be making or maintaining Swing
Line Loans in such Core Currency, as reported by the Swing
Line Lender to the Administrative Agent and the Parent, (iii)
as to any Lender, with respect to any Bid Loan, the lending
office, branch or affiliate of such Lender designated as such
Lender's lending office for such Bid Loan in its Bid for such
Bid Loan, (iv) as to any Lender, with respect to Individual
Currency Loans in any Non-Core Currency, initially, the
office, branch or affiliate of such Lender designated as such
Lender's lending office for such Individual Currency Loans in
such Non-Core Currency on Exhibit R, and thereafter, such
other office, branch or affiliate of such Lender through
which it shall be making or maintaining Individual Currency
Loans in such Non-Core Currency, as reported by such Lender
to the Administrative Agent and the Parent, and (v) as to any
Lender, with respect to any Negotiated Rate Loan, the lending
office, branch or affiliate of such Lender designated as such
Lender's lending office for such Negotiated Loan in the
Negotiated Rate Confirmation for such Negotiated Rate Loan.
"Applicable Margin": (i) with respect to the unpaid
principal amount of ABR Advances, the applicable percentage
set forth below in the column entitled "Applicable Margin for
ABR Advances" and (ii) with respect to the unpaid principal
amount of Eurodollar Advances, Core Currency Euro Advances
and Individual Currency Loans, the applicable percentage set
forth below in the column entitled "Applicable Margin for
Eurodollar/Core Currency Euro Advances/Individual Currency
Loans":
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%
"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 Admin-
istrative Agent listed in Exhibit Q as its
"Domestic Payment Office", and (y) in respect
of Alternate Currency Loans and Letters of
Credit designated in Alternate Currencies, the
office of the Administrative Agent listed in
Exhibit Q as its payment office for the
applicable Alternate Currency, or such other
office or offices as the Administrative Agent
may from time to time hereafter designate in
writing as such to the Parent, each Lender and
each Borrower;
(ii) the Swing Line Lender, in respect of each
Swing Line Loan, the office of the Swing Line
Lender listed in Exhibit R as the payment of-
fice for the applicable Core Currency in which
such Swing Line Loan is made or such other of-
fice or offices as the Swing Line Lender may
from time to time hereafter designate in writ-
ing as such to the Administrative Agent, the
Parent and each Swing Line Borrower;
(iii) any other Lender, (w) in respect of each Re-
volving Loan, the office of such Lender listed
in Exhibit R as its payment office for the ap-
plicable 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 Bor-
rower, (x) in respect of each Individual Cur-
rency Loan, the office of such Lender listed
in Exhibit R as its payment office for the ap-
plicable 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 ap-
plicable Currency in which such Letter of
Credit is issued or such other office or of-
fices 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 assign-
ment and acceptance agreement executed by an assignor and an
assignee pursuant to which the assignor assigns to the as-
signee all or any portion of such assignor's Loans,
Commitment, Individual Currency Commitments and other rights
and obligations under the Loan Documents, substantially in
the form of Exhibit D.
"Assignment Fee": as defined in Section 11.7(b).
"Australian Borrower": one or more of the
following: Tiffany, Tiffany International or a wholly-owned
Subsidiary of the Parent which is organized under the laws
of, and has its principal office in, Australia and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Australian Dollars": freely transferable lawful
money of Australia.
"Availability Percentage": with respect to any
Lender at any time, a percentage equal to a fraction (x) the
numerator of which is
(A) the Commitment of such Lender, minus
(B) the sum of (I) the aggregate principal amount
of all Revolving Loans then outstanding from such Lender
(determined on the basis of the Dollar Equivalent for
each outstanding Alternate Currency Revolving Loan),
plus (II) the aggregate principal amount of all Indi-
vidual Currency Loans then outstanding from such Lender
(determined on the basis of the Dollar Equivalent of
each such Individual Currency Loan), plus (III) the
SL/LC Credit Exposure of such Lender, and
(y) the denominator of which is
(A) the Aggregate Commitments, minus
(B) the sum of (I) the outstanding principal
balance of all Revolving Loans (determined on the basis
of the Dollar Equivalent for each outstanding Alternate
Currency Revolving Loan), plus (II) the outstanding
principal balance of all Individual Currency Loans
(determined on the basis of the Dollar Equivalent of
each such Individual Currency Loan), plus (III) the
outstanding principal balance of all Swing Line Loans,
plus (IV) the Letter of Credit Exposure.
"Available Alternate Currency": each Alternate Cur-
rency 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 pe-
riod 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 the form of Exhibit B pursuant to which a Subsidiary of
the Parent may become a Subsidiary Borrower pursuant to the
provisions of Section 2.23.
"Borrowers": collectively, Tiffany, Tiffany 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 Borrow-
ing, 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 authorized or required by law or other
government action to close in the country in which the
principal office of the applicable Borrower is located, and
(iii) with respect to all notices and
determinations in connection with, and payments of principal
and interest on, an Alternate Currency Bid Loan, an Alternate
Currency Negotiated Rate Loan, an Individual Currency Loan or
a Letter of Credit designated in an Alternate Currency, any
day which is a Business Day described in clause (i) above, is
a day for trading by and between banks in the London
interbank market and which is not a legal holiday or a day on
which banking institutions are authorized or required by law
or other government action to close in the country in which
(x) the principal office of the applicable Borrower is
located and (y) the Applicable Lending Office and Applicable
Payment Office of the applicable Lender is located.
"Canadian Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary
of the Parent which is organized under the laws of, and has
its principal office in, Canada and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Canadian Dollars": freely transferable lawful
money of Canada.
"Change of Control": (i) any "Person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended from time to
time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect) is or
shall become the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 thereunder), directly or indirectly, of
more than 50%, on a fully diluted basis, of the voting and
economic interests of the Parent, or (ii) the Board of
Directors of the Parent shall cease to consist of a majority
of Continuing Directors.
"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.
"Compliance Certificate": a certificate in the form
of Exhibit M.
"Consolidated": the Parent and its Subsidiaries on
a consolidated basis in accordance with GAAP.
"Consolidated Capitalization": as of any date,
total stockholder's equity of the Parent and its Subsidiaries
on a Consolidated basis on such date (without giving effect
to foreign currency translation adjustments, except to the
extent such adjustments are in excess of $10,000,000 (whether
positive or negative)) plus Total Debt on such date.
"Contingent Obligation": as to any Person (the
"secondary obligor"), any obligation of such secondary
obligor (a) guaranteeing or in effect guaranteeing any return
on any Investment made by another Person, or (b) guaranteeing
or in effect guaranteeing any Indebtedness, lease, dividend
or other obligation ("primary obligations") of any other
Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of such
secondary obligor, whether contingent, (i) to purchase any
such primary obligation or any Property constituting direct
or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary
obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary 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 pay-
ment 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 obli-
gor is a general partner, except to the extent that such In-
debtedness of such partnership is nonrecourse to such second-
ary obligor and its separate Property; provided, however,
that the term "Contingent Obligation" shall not include (i)
the indorsement of instruments for deposit or collection in
the ordinary course of business and (ii) guaranties by the
Parent or any Subsidiary of the Parent of the primary
obligations of any other Subsidiary of the Parent incurred in
the ordinary course of business of such other Subsidiary; and
provided, further, that the amount of any such Contingent
Obligation shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of such primary
obligation and (b) the maximum amount for which such
secondary obligor may be liable pursuant to the terms of the
agreement embodying such Contingent Obligation unless such
primary obligation and the maximum amount for which such sec-
ondary obligor may be liable are not stated or determinable,
in which case the amount of such Contingent Obligation shall
be such secondary obligor's maximum reasonably anticipated
liability in respect thereof as determined by such secondary
obligor in good faith.
"Continuing Directors": the directors of the
Parent on the Effective Date and each other director, if such
director's nomination for election to the Board of Directors
of the Parent is recommended by a majority of the then Con-
tinuing Directors.
"Conversion Date": the date on which (i) a Eurodol-
lar 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
Revolving Loans (or any portions thereof) at such time as
they (or such portions) are maintained and/or being
maintained in a Core Currency (other than Dollars) at a rate
of interest based upon a Core Currency Euro Rate; each a
"Core Currency Euro Advance".
"Core Currency Euro Rate": with respect to each day
during each Interest Period applicable to any Core Currency
Euro Advance, a rate of interest per annum determined by di-
viding (and then rounding to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, then to the next higher 1/16
of 1%):
(a) (i) the rate per annum that appears on
page 3740 or 3750 of the Dow Jones Telerate Screen (or any
successor page) for deposits of the applicable Core Currency
with a maturity comparable to such Interest Period,
determined as of 11:00 A.M. (London time) (x) on the date
which is two Business Days prior to the commencement of such
Interest Period, in the case of a Core Currency (other than
Sterling Pounds) and (y) on the date of the commencement of
such Interest Period, in the case of Sterling Pounds or, if
such rate does not appear on page 3740 or 3750 of the Dow
Jones Telerate Screen (or any successor page) or (ii) the
rate per annum equal to the offered quotation notified to the
Administrative Agent by the Reference Lender as the offered
quotation by first class banks in the London interbank market
to the Reference Lender for such Core Currency deposits of
amounts in immediately available funds comparable to the
principal amount of such Core Currency Euro Advance of the
Reference Lender with a maturity comparable to such Interest
Period determined as of 11:00 A.M. (London time) (x) on the
date which is two Business Days prior to the commencement of
such Interest Period, in the case of a Core Currency (other
than Sterling Pounds) and (y) on the date of the commencement
of such Interest Period, in the case of Sterling Pounds, by
(b) a number equal to 1.00 minus the
aggregate of the stated maximum rates in effect on such day
(without duplication) of all reserve requirements (including
marginal, emergency, supplemental and special reserves) and
similar charges, expressed as a decimal, established by any
Governmental Authority, including those established by the
Board of Governors of the Federal Reserve System and any
other banking authority to which BNY and other major United
States money center banks are subject in respect of
eurocurrency funding (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 Ap-
plicable;
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 Cur-
rency Euro Advance with a maturity comparable to such In-
terest 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 ac-
cordance with the terms of such Loan Document, is or is to be
a party thereto.
"Currency": any Core Currency or Non-Core Currency.
"Default": any of the events specified in Section
9.1, whether or not any requirement for the giving of notice,
the lapse of time, or any other condition, has been
satisfied.
"Disposition": with respect to any Person, any
sale, assignment, transfer or other disposition by such
Person, by any means, of
(a) the Stock of, or other equity interests of, any
other Person,
(b) any business, operating entity, division or segment
thereof, or
(c) any other Property of such Person, other than sales
of inventory (other than in connection with bulk
transfers).
"Dollar Bid Loan": a Bid Loan denominated in Dol-
lars.
"Dollar Equivalent": on any date of determination
thereof, the amount of Dollars which could be purchased with
the amount of the relevant Alternate Currency involved in
such computation at the spot rate at which Dollars may be
exchanged into such Alternate Currency as set forth on such
date on (i) Reuters pages MGTY, MGTX, SCNY or BNMX or (ii)
Dow Jones Telerate pages 262, 264, 265, 266 or 9993 (or any
successor pages) or, if such rate does not appear on such
pages, at the spot exchange rate therefor as determined by
the Administrative Agent as of 11:00 A.M. (London time) on
such date of determination thereof for delivery (x) in the
case of an exchange of Dollars into Canadian Dollars, one
Business Day later and (y) in all other cases, two Business
Days later. In the event that, on any date of determination,
a spot rate for an individual Alternate Currency appears on
both a page of Reuters set forth above and a page of Dow
Jones Telerate set forth above, the Dollar Equivalent of such
Alternate Currency shall be the arithmetic mean of such spot
rates.
"Dollar Loan": each Dollar Revolving Loan, Dollar
Bid Loan, Dollar Negotiated Rate Loan and Dollar Swing Line
Loan.
"Dollar Negotiated Rate Loan": a Negotiated Rate
Loan denominated in Dollars.
"Dollar Reimbursement Amount": as defined in
Section 2.19(d).
"Dollar Revolving Loan" and "Dollar Revolving
Loans": as defined in Section 2.1(b).
"Dollar Swing Line Loan" and "Dollar Swing Line
Loans": as defined in Section 2.1(c).
"Dollars": and "$": freely transferable lawful
money of the United States.
"Domestic Borrowers": Tiffany, Tiffany Interna-
tional and each other Borrower which is a corporation orga-
nized under the laws of the United States or any State
thereof and which has its principal place of business in the
United States; each a "Domestic Borrower".
"EBIT": for any period, the net income of the
Parent and its Subsidiaries on a Consolidated basis for such
period plus each of the following with respect to the Parent
and its Subsidiaries on a Consolidated basis to the extent
utilized in determining such net income: (a) Interest Expense
and (b) provision for taxes.
"Effective Date": June 30, 1995.
"Employee Benefit Plan": an employee benefit plan
within the meaning of Section 3(3) of ERISA maintained, spon-
sored or contributed to by the Parent, any of its Subsidiar-
ies 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 succeeding Business Day
unless the result of such extension would be to carry such
Euro Interest Period into another calendar month, in which
event such Euro Interest Period shall end on the immediately
preceding Business Day, (ii) any Euro Interest Period that
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in
the calendar month at the end of such Euro Interest Period)
shall end on the last Business Day of a calendar month, and
(iii) no Borrower shall select a Euro Interest Period which
shall end after the Maturity Date.
"Eurodollar Advances": collectively, the Revolving
Loans (or any portions thereof) at such time as they (or such
portions) are made and/or being maintained at a rate of
interest based upon a Eurodollar Rate; each a "Eurodollar
Advance".
"Eurodollar Rate": with respect to each day during
each Interest Period applicable to any Eurodollar Advance, a
rate of interest per annum determined by dividing (and then
rounding to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, then to the next higher 1/16 of 1%):
(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 ap-
proximately to such Eurodollar Advance for a period equal to
such Interest Period, as quoted at approximately 11:00 A.M.
two Business Days prior to the first day of such Interest Pe-
riod, 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), ex-
pressed 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 cur-
rency funding liabilities.
"Event of Default": any of the events specified in
Section 9.1, provided that any requirement for the giving of
notice, the lapse of time, or any other condition has been
satisfied.
"Excess Tax": as defined in Section 2.13(g).
"Expiration Date": the Business Day immediately
preceding the Maturity Date.
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to
the next higher 1/100 of 1%), equal to the weighted average
of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding
such day, provided that (i) if the day for which such rate is
to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so
published for any day which is a Business Day, the Federal
Funds Rate for such day shall be the average of the three
rates quoted by federal funds brokers to BNY on such day on
such transactions received by BNY as determined by BNY and
reported to the Administrative Agent.
"Financial Officer": the chief financial officer,
the treasurer or the assistant treasurer of the Parent or
such other officer thereof as shall be reasonably satis-
factory to the Administrative Agent.
"Financial Statements": as defined in Section 4.15.
"Fixed Rate Loan": a Eurodollar Advance, a Core
Currency Euro Advance, a Swing Line Negotiated Rate Advance,
a Negotiated Rate Loan, an Individual Currency Loan or a Bid
Loan.
"Foreign Pension Plan": any plan, fund (including
any superannuation fund) or other similar program established
or maintained outside of the United States by the Parent or
any one or more of its Subsidiaries primarily for the benefit
of employees of the Parent or such Subsidiaries residing out-
side 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 corpora-
tion organized under the laws of France and whose principal
office is located in France.
"French Francs": freely transferable lawful money
of France.
"Funded Current Liability Percentage": as defined
in Section 401(a)(29) of the Code.
"GAAP": generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or
in such other statement by such other entity as may be
approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of
the date of determination. If at any time after the
Effective Date any change in GAAP 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 rea-
sonably 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, com-
mission, board, bureau, agency, public authority, instrumen-
tality 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 du-
plication, (a) indebtedness for borrowed money or the
deferred purchase price of Property (other than trade
payables and accrued expenses incurred in the ordinary course
of business), (b) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (c) obligations with
respect to any conditional sale or other title retention
agreement, (d) indebtedness arising under acceptance facili-
ties 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 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 entitled "Individual Currency Commitment" in respect
of such Non-Core Currency (determined on the basis of the
Dollar Equivalent for such Non-Core Currency), as the same
may be (x) reduced from time to time pursuant to Section 2.9
or (y) adjusted from time to time as a result of assignments
to or from such Lender pursuant to Section 11.7, provided,
however, that the aggregate amount of all of the Individual
Currency Commitments of each Lender (determined on the basis
of the Dollar Equivalent for each applicable Non-Core
Currency) shall not exceed the amount of such Lender's
Commitment.
"Individual Currency Interest Period": with respect
to any Individual Currency Loan requested by any Non-Core
Currency Borrower, the period commencing on the Borrowing
Date with respect to such Individual Currency Loan and ending
one, two or three months thereafter, as selected by such Non-
Core Currency Borrower in its irrevocable Notice of Bor-
rowing, provided, however, that (i) if any Individual
Currency Interest Period would otherwise end on a day which
is not a Business Day, such Individual Currency Interest Pe-
riod shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such
Individual Currency Interest Period into another calendar
month, in which event such Individual Currency Interest
Period shall end on the immediately preceding Business Day,
(ii) any Individual Currency Interest Period that begins on
the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Individual Currency
Interest Period) shall end on the last Business Day of a cal-
endar 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 di-
viding (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 such Interest Period, determined as of
approximately 11:00 A.M. (London time) on the date
which is two Business Days prior to the commence-
ment 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, in-
terbank market to the applicable Lender for such
Non-Core Currency deposits of amounts in im-
mediately available funds comparable to the prin-
cipal 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 Busi-
ness Days prior to the commencement of such Inter-
est Period or, in the case of Individual Currency
Loans designated in Australian Dollars, on the
first day of such Interest Period,
(ii) if such Individual Currency Loan is designated in any
other Non-Core Currency, a rate per annum equal to the
offered quotation by first class banks in the applicable in-
terbank market to the applicable Lender for deposits of such
Non-Core Currency in amounts in immediately available funds
comparable to the principal amount of such Individual
Currency Loan with a maturity comparable to such Interest
Period as determined by such Lender on the date which is two
Business Days prior to the commencement of such Interest
Period, adjusted for additional costs and local market
conditions as determined by such Lender, by
(b) a number equal to 1.00 minus the aggregate
of the stated maximum rates in effect on such day (without
duplication) of all reserve requirements (including marginal,
emergency, supplemental and special reserves) and similar
charges, expressed as a decimal, established by any
Governmental Authority, including those established by the
Board of Governors of the Federal Reserve System and any
other banking authority to which BNY and other major United
States money center banks are subject in respect of
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board of Governors of the
Federal Reserve System) maintained by a member of the Federal
Reserve System with deposits exceeding $1 billion in respect
of eurodollar currency funding liabilities, to the extent Ap-
plicable;
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 regis-
tered 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 ra-
tio of (a) EBIT in respect of the period comprised of the
four consecutive fiscal quarters ended immediately prior to
such date in respect of which financial statements have been
delivered pursuant to Sections 7.7(a), 7.7(c) or 7.7(d) to
(b) Interest Expense for such period.
"Interest Expense": for any period, the interest
expense of the Parent and its Subsidiaries on a Consolidated
basis in respect of such period.
"Interest Period": a Euro Interest Period, a Swing
Line Interest Period, a Negotiated Rate Interest Period, an
Individual Currency Interest Period or a Bid Interest Period,
as the case may be.
"Interest Rate Protection Arrangement": any
interest rate swap, cap or collar arrangement or any other
derivative product, in each case designed to reduce exposure
to interest rate fluctuations.
"Investments": as defined in Section 8.7.
"Invitation to Bid": an invitation to make Bids in
the form of Exhibit G.
"Issuing Bank": BNY.
"Italian Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany-Faraone S.P.A., a
corporation organized under the laws of Italy and whose
principal office is located in Italy.
"Italian Lira": freely transferable lawful money of
Italy.
"Japanese Borrower": one or more of the following:
Tiffany, Tiffany International, Tiffany Japan or a
wholly-owned Subsidiary of the Parent which is organized
under the laws of, and has its principal office in, Japan and
which shall become a Borrower pursuant to Section 2.23
hereof.
"Japanese Yen": freely transferable lawful money of
Japan.
"Judgment Currency": as defined in Section 11.14.
"Judgment Currency Conversion Date": as defined in
Section 11.14.
"Korean Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary
of the Parent which is organized under the laws of, and has
its principal office in, Korea and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Korean Won": freely transferable lawful money of
Korea.
"Lender": each financial institution listed on
Exhibit A-1, as well as any Person which becomes a "Lender"
hereunder pursuant to Sections 11.7 or 11.1; it being under-
stood 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 de-
fined in Section 2.19.
"Letter of Credit Applicants": collectively, Tif-
fany and Tiffany International; each a "Letter of Credit Ap-
plicant".
"Letter of Credit Commissions": as defined in Sec-
tion 3.2.
"Letter of Credit Commitment": (i) the commitment
of the Issuing Bank to issue Letters of Credit, provided that
the Letter of Credit Exposure shall not exceed $25,000,000
(determined on the basis of the Dollar Equivalent for each
outstanding Letter of Credit designated in an Alternate
Currency), and (ii) the commitment of the Lenders in respect
of the Letter of Credit Exposure as set forth in Section
2.20.
"Letter of Credit Exposure": at any date, the sum,
without duplication, of (i) the aggregate undrawn face
amount (determined on the basis of the Dollar Equivalent for
each outstanding Letter of Credit designated in an Alternate
Currency) of the outstanding Letters of Credit at such date
and (ii) the aggregate unpaid reimbursement obligations in
respect of the Letters of Credit at such date (after giving
effect to any Loans made on such date to pay any such reim-
bursement 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,
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 Cur-
rency Loan, each Negotiated Rate Loan, each Bid Loan and each
Swing Line Loan.
"Loan Documents": this Agreement and the Guaranty.
"Malaysian Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary
of the Parent which is organized under the laws of, and has
its principal office in, Malaysia and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Malaysian Ringgit": freely transferable lawful
money of Malaysia.
"Mandatory Borrowing": as defined in Section
2.1(d).
"Margin Stock": any "margin stock", as said term is
defined in Regulation U of the Board of Governors of the Fed-
eral Reserve System, as the same may be amended or supple-
mented 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, busi-
ness, prospects or Property of the Parent and its
Subsidiaries taken as a whole, (ii) the ability of the Parent
or any Borrower to perform its obligations under any Loan
Document, or (iii) the ability of the Administrative Agent,
the Issuing Bank, the Swing Line Lender or any Lender to en-
force any Loan Document.
"Maturity Date": June 30, 2000, or such earlier
date on which the Loans shall become due and payable, whether
by acceleration or otherwise.
"Maximum Offer": as defined in Section 2.11(b).
"Maximum Request": as defined in Section 2.11(a).
"Mexican Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary
of the Parent which is organized under the laws of, and has
its principal office in, Mexico and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Mexican Pesos": freely transferable lawful money
of Mexico.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Pension Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Negotiated Rate": as defined in Section 2.12.
"Negotiated Rate Confirmation": as defined in Sec-
tion 2.12.
"Negotiated Rate Confirmation Request": a request
by a Borrower and the Parent, in the form of Exhibit K, for
confirmation by a Lender of such Lender's agreement to make a
Negotiated Rate Loan to such Borrower pursuant to Section
2.12.
"Negotiated Rate Interest Period": as to any
Negotiated Rate Loan, the period commencing on the date of
such Negotiated Rate Loan, and ending on the applicable date
specified in the Negotiated Rate Confirmation for such
Negotiated Rate Loan, which shall not be earlier than 7 days
after the date of such Negotiated Rate Loan or later than 180
days after the date of such Negotiated Rate Loan; provided,
however, that (i) if any Negotiated Rate Interest Period
would end on a day other than a Business Day, such Negotiated
Rate Interest Period shall be extended to the next succeeding
Business Day, unless such next succeeding Business Day would
be a date on or after the Maturity Date in which case such
Negotiated Rate Interest Period shall end on the next preced-
ing Business Day and (ii) no Borrower shall select a Nego-
tiated 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
Individual Currency Loans, the Australian Borrower, the
Canadian Borrower, the Hong Kong Borrower, the Italian
Borrower, the Korean Borrower, the Malaysian Borrower, the
Mexican Borrower, the Philippine Borrower, the Singaporean
Borrower, the Swiss Borrower, the Taiwanese Borrower and the
Thai Borrower; each a "Non-Core Currency Borrower".
"Non-Issuance Event": as defined in Section
2.19(a).
"Non-Swing Loan Event": as defined in Section
2.1(c).
"Notice of Borrowing": a request for Loans in the
form of Exhibit C signed by the Parent and the applicable
Borrower.
"Notice of Conversion": a notice substantially in
the form of Exhibit E.
"Obligation Currency": as defined in Section 11.14.
"Other Hedging Arrangement": any foreign exchange
contract, currency swap arrangement, commodity arrangement or
any other similar arrangement, in each case designed to pro-
tect against fluctuations of currency values.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA, or
any Governmental Authority succeeding to the functions
thereof.
"Pension Plan": at any time, any Employee Benefit
Plan (including a Multiemployer Plan) subject to Section 302
of ERISA or Section 412 of the Code, the funding requirements
of which are, or at any time within the six years immediately
preceding the time in question, were in whole or in part, the
responsibility of the Parent, any of its Subsidiaries or an
ERISA Affiliate.
"Person": any individual, firm, partnership, joint
venture, corporation, association, business enterprise, lim-
ited liability company, joint stock company, unincorporated
association, trust, Governmental Authority or any other en-
tity, 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 unse-
cured long term debt Rating of the Parent by (x) S&P is A- or
higher or (y) Moody's is A3 or higher.
"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) nei-
ther 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 ap-
plies.
"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 Pen-
sion 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 regula-
tions), 4062(e) or 4063(a) of ERISA or the regulations there-
under, (b) an event requiring the Parent, any of its
Subsidiaries or any ERISA Affiliate to provide security to a
Pension Plan under Section 401(a)(29) of the Code, or (c)
failure to make any payment required by Section 412(m) of the
Code.
"Property": in respect of any Person, all types of
real, personal, tangible, intangible or mixed property and
all types of tangible or intangible property owned or leased
by such Person.
"Proportionate Share": as to any Subsidiary Bor-
rower (a) if such cost, expense or other amount is directly
attributable to the Loans made to such Subsidiary Borrower or
any action taken or omitted to be taken by such Subsidiary
Borrower, 100% of such amount and (b) if such cost, expense
or other amount is not directly attributable to one or more
specific Borrowers, such amount multiplied by (i) if Loans
are outstanding, the percentage equivalent of a fraction the
numerator of which is the principal amount of Loans
outstanding to such Subsidiary Borrower and the denominator
of which is the aggregate amount of Loans outstanding to all
Borrowers and (ii) if no Loans are outstanding, the
percentage equivalent of a fraction the numerator of which is
one and the denominator of which is the number of Borrowers.
"Proposed Lender": as defined in Section 11.1(b).
"Quarterly Payment Date": each January 31, April
30, July 31 and October 31 of each year.
"Rating": the actual, or if no actual then the
implied, senior unsecured long term debt rating of the
Parent, in either case as assigned by S&P or Moody's, as the
case may be.
"Reference Lender": BNY.
"Regulation D": Regulation D of the Board of Gover-
nors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof estab-
lishing reserve requirements.
"Reportable Event": with respect to any Pension
Plan, (a) any event set forth in Sections 4043(c) (other than
a Reportable Event as to which the 30 day notice requirement
is waived by the PBGC under applicable regulations), 4062(e)
or 4063(a) of ERISA or the regulations thereunder, (b) an
event requiring the Parent, any of its Subsidiaries or any
ERISA Affiliate to provide security to a Pension Plan under
Section 401(a)(29) of the Code, or (c) failure to make any
payment required by Section 412(m) of the Code.
"Required Lenders": (i) at any time when no Loans
are outstanding, Lenders having Commitments or, if no Commit-
ments then exist, Lenders having Commitments on the last day
on which Commitments did exist, equal to at least 60% of the
Aggregate Commitments, and (ii) at any time when Loans are
outstanding (x) if the Commitments then exist, Lenders having
Commitments equal to at least 60% of the Aggregate
Commitments, and (y) if the Commitments have been terminated
or otherwise no longer exist, Lenders having Credit
Exposures equal to at least 60% of the Aggregate Credit
Exposure.
"Required Payment": as defined in Section 2.13(a).
"Responsible Officer": the president, the chief
financial officer, the treasurer or the assistant treasurer
of the Parent, Tiffany or Tiffany International.
"Restricted Payment": with respect to any Person,
any of the following, whether direct or indirect: (a) the
declaration or payment by such Person of any dividend or
distribution on any class of Stock of such Person, other than
a dividend payable solely in shares of that class of Stock to
the holders of such class, (b) the declaration or payment by
such Person of any distribution on any other type or class of
equity interest or equity investment in such Person, and (c)
any redemption, retirement, purchase or acquisition of, or
sinking fund or other similar payment in respect of, any
class of Stock of, or other type or class of equity interest
or equity investment in, such Person.
"Revolving Loan" and "Revolving Loans": as defined
in Section 2.1(a).
"S&P": Standard & Poor's Ratings 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 corporation organized under the laws of
Singapore and whose principal office is located in Singapore.
"Singaporean Dollars": freely transferable lawful
money of Singapore.
"SL/LC Credit Exposure": with respect to any Lender
at any time, (i) the sum of (A) the outstanding principal
balance of all Swing Line Loans (determined on the basis of
the Dollar Equivalent for each Alternate Currency Swing Line
Loan), plus (B) the Letter of Credit Exposure, multiplied by
(ii) the Availability Percentage of such Lender.
"Special Counsel": Emmet, Marvin & Martin, LLP,
special counsel to the Administrative Agent.
"Sterling Borrower": one or more of the following:
Tiffany, Tiffany International or Tiffany & Co., a corpo-
ration organized under the laws of the United Kingdom and
whose principal office is located in the United Kingdom.
"Sterling Pounds": freely transferable lawful money
of the United Kingdom.
"Stock": any and all shares, rights, interests,
participations, warrants, options, rights of conversion or
other equivalents (however designated) of corporate stock.
"Subsidiary": with respect to any Person at any
time and from time to time, any corporation, association,
partnership, limited liability company, joint venture or
other business entity of which such Person and/or any
Subsidiary of such Person, directly or indirectly at such
time, either (a) in respect of a corporation, owns or
controls more than 50% of the outstanding Stock having ordi-
nary voting power to elect a majority of the board of direc-
tors or similar managing body, irrespective of whether a
class or classes shall or might have voting power by reason
of the happening of any contingency, or (b) in respect of an
association, partnership, limited liability company, joint
venture or other business entity, is entitled to share in
more than 50% of the profits and losses, however determined.
"Subsidiary Borrowers": collectively, the Domestic
Borrowers (other than Tiffany and Tiffany International), the
Australian Borrower, the Canadian Borrower, the French Bor-
rower, the German Borrower, the Hong Kong Borrower, the Ital-
ian 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 Ad-
dendum pursuant to Section 2.23; each a "Subsidiary Bor-
rower".
"Swing Line Borrowers": with respect to Swing Line
Loans, the Domestic Borrowers, the French Borrower, the
German Borrower, the Japanese Borrower and the Sterling
Borrower; each a "Swing Line Borrower".
"Swing Line Commitment": an amount equal to
$15,000,000, as the same may be reduced from time to time
pursuant to Section 2.9.
"Swing Line Commitment Period": the period from the
Effective Date to, but excluding, the Swing Line Termination
Date.
"Swing Line Interest Period": (i) as to any Swing
Line Negotiated Rate Advance, the period commencing on the
date of such Swing Line Negotiated Rate Advance and ending on
the date agreed to between the Parent, the applicable Swing
Line Borrower and the Swing Line Lender with respect to such
Swing Line Negotiated Rate Advance, and (ii) as to any Swing
Line Loan made as an ABR Advance, the period commencing on
the date of such ABR Advance and ending on the date set forth
by the Parent and the applicable Swing Line Borrower in the
Notice of Borrowing with respect to such ABR Advance;
provided, however, that the last day of any Swing Line
Interest Period shall not be earlier than one day after the
date of such Swing Line Negotiated Rate Advance or ABR
Advance, as the case may be, or later than 30 days after the
date of such Swing Line Negotiated Rate Advance or ABR
Advance, as the case may be, and in no event later than 30
days prior to the Expiration Date; and provided further,
however, that if any Swing Line Interest Period would end on
a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day.
"Swing Line Lender": BNY.
"Swing Line Loan" and "Swing Line Loans": as de-
fined in Section 2.1(c).
"Swing Line Negotiated Rate": with respect to any
Swing Line Interest Period applicable to any Swing Line Nego-
tiated 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 im-
posed 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 termination under Section 4041(e) of ERISA,
(c) the institution of proceedings by the PBGC to terminate a
Pension Plan under Section 4042 of ERISA, or (d) the
appointment of a trustee to administer any Pension Plan under
Section 4042 of ERISA.
"Thai Borrower": one or more of the following:
Tiffany, Tiffany International or a wholly-owned Subsidiary
of the Parent which is organized under the laws of, and has
its principal office in, Thailand and which shall become a
Borrower pursuant to Section 2.23 hereof.
"Thai Baht": freely transferable lawful money of
Thailand.
"Tiffany Japan": Tiffany & Co. Japan Inc., a
Delaware corporation.
"Total Debt": as of any date, all Indebtedness of
the Parent and its Subsidiaries on a Consolidated basis on
such date.
"Unfunded Pension Liabilities": with respect to
any Pension Plan (other than a Multiemployer Plan), as of the
last day of the fiscal year of such Pension Plan preceding
the time in question, the amount determined by taking the
accumulated benefit obligation, as disclosed in accordance
with Statement of Accounting Standards No. 87, "Employers'
Accounting for Pensions", over the fair market value of Pen-
sion 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 re-
spect to any Employee Benefit Plan that provides
postretirement benefits other than pension benefits, the
amount of the transition obligation, as determined in ac-
cordance 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 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 pursu-
ant thereto, accounting terms not defined in Section 1.1, and
accounting terms partly defined in Section 1.1 to the extent
not defined, shall have the respective meanings given to them
under GAAP. Unless otherwise expressly provided herein, the
word "fiscal" when used herein shall refer to the relevant
fiscal period of the Parent.
(c) The words "hereof", "herein", "hereto" and
"hereunder" and similar words when used in each Loan Document
shall refer to such Loan Document as a whole and not to any
particular provision of such Loan Document, and Section,
schedule and exhibit references contained therein shall refer
to Sections thereof or schedules or exhibits thereto unless
otherwise expressly provided therein.
(d) All references herein to a time of day shall
mean the then applicable time in New York, New York, unless
otherwise expressly provided herein.
(e) Section headings have been inserted herein and
in the other Loan Documents for convenience only and shall
not be construed to be a part hereof or thereof. Unless the
context otherwise requires, words in the singular number in-
clude the plural, and words in the plural include the singu-
lar.
(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 in-
cluded "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 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 Ag-
gregate Credit Exposure shall not exceed the Aggregate Com-
mitments, 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 Re-
volving Loan), plus (II) the aggregate principal amount of
all Individual Currency Loans then outstanding from such
Lender (determined on the basis of the Dollar Equivalent of
each such Individual Currency Loan), plus (III) the SL/LC
Credit Exposure of such Lender, shall not exceed such
Lender's Commitment. During the Commitment Period, the Core
Currency Borrowers may borrow, prepay in whole or in part and
reborrow Revolving Loans under the Aggregate Commitments, all
in accordance with the terms and conditions of this Agree-
ment.
(b) Subject to the terms and conditions hereof,
Revolving Loans, (i) if to be made in Dollars (each a "Dollar
Revolving Loan" and, collectively, the "Dollar Revolving
Loans"), shall be made to one or more Domestic Borrowers and
shall, at the option of such Domestic Borrowers, be either
ABR Advances or Eurodollar Advances, (ii) if to be made in
French Francs, shall be made to the French Borrower, (iii) if
to be made in German Marks, shall be made to the German
Borrower, (iv) if to be made in Japanese Yen, shall be made
to the Japanese Borrower, and (v) if to be made in Sterling
Pounds, shall be made to the Sterling Borrower. The Re-
volving Loans, together with all accrued and unpaid interest
thereon, shall mature and be due and payable in the Ap-
plicable Currency on the Maturity Date.
(c) Subject to and upon the terms and conditions
set forth herein, the Swing Line Lender in its individual ca-
pacity agrees to make at any time and from time to time dur-
ing 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 Alter-
nate Currency, (ii) may be repaid and reborrowed in ac-
cordance with the provisions hereof, (iii) shall not, im-
mediately after giving effect thereto, result in the Ag-
gregate Credit Exposure exceeding the Aggregate Commitments,
and (iv) shall not, immediately after giving effect thereto,
result in the aggregate outstanding principal amount of all
Swing Line Loans (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Swing Line
Loan) exceeding the Swing Line Commitment. The Swing Line
Lender shall not be obligated to make any Swing Line Loans at
a time when any Lender (other than the Swing Line Lender)
shall be in default of its obligations under this Agreement
unless the Swing Line Lender has entered into arrangements
satisfactory to it and the Parent to eliminate the Swing Line
Lender's risk with respect to each defaulting Lender's par-
ticipation 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 De-
fault or an Event of Default under Sections 9.1(g) or (h)),
in which case one or more borrowings of Revolving Loans con-
stituting ABR Advances (or constituting one or more Eurodol-
lar Advances specified by the Parent in accordance with Sec-
tion 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 be
applied directly to the Swing Line Lender to repay the Swing
Line Lender for such outstanding Swing Line Loans. Each
Lender hereby irrevocably agrees to make Revolving Loans in
Dollars or the Applicable Currency, as the case may be,
pursuant to each Mandatory Borrowing in respect of any Swing
Line Loan in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by
the Swing Line Lender notwithstanding (i) the amount of the
Mandatory Borrowing may not comply with the minimum amount
for Loans otherwise required hereunder, (ii) whether any
conditions specified in Sections 5 and 6 are then satisfied,
(iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Borrowing, (v) the aggregate
principal amount of all Loans then outstanding (determined on
the basis of the Dollar Equivalent of each outstanding
Alternate Currency Loan), (vi) the Aggregate Credit Exposure
at such time and (vii) the amount of the Aggregate
Commitments at such time, provided that no Non-Swing Loan
Event shall have occurred and be continuing with respect to
such Swing Line Loan. In the event that any Mandatory
Borrowing cannot for any reason be made on the date
otherwise required above (including as a result of the com-
mencement of any proceeding referred to in Sections 9.1(g) or
(h)) then each Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would other-
wise have occurred, but adjusted for any payments received
from the Parent or the applicable Swing Line Borrower on or
after such date and prior to such purchase) from the Swing
Line Lender such assignments in each outstanding Swing Line
Loan as shall be necessary to cause the Lenders to share in
each such Swing Line Loan ratably based upon their respective
Availability Percentages at such time, provided that no
Non-Swing Loan Event shall have occurred and be continuing
with respect to such Swing Line Loan, and provided further
that all interest payable on each such Swing Line Loan shall
be for the account of the Swing Line Lender until the date as
of which the respective assignment therein is purchased and,
to the extent attributable to the purchased assignment, shall
be payable to the relevant Lender from and after such date.
Each Lender agrees promptly to indemnify the Swing Line
Lender for any costs or expenses the Swing Line Lender may
incur as a result of the failure of such Lender to fulfill
its obligations under this Section 2.1(d).
(e) Subject to the terms and conditions hereof,
each Lender in its individual capacity agrees to make at any
time and from time to time during the Commitment Period a
loan or loans under one or more of its Individual Currency
Commitments (each an "Individual Currency Loan" and, as the
context may require, collectively with all other Individual
Currency Loans of such Lender and, as the context may re-
quire, with the Individual Currency Loans of all other Lend-
ers, the "Individual Currency Loans") to one or more of the
applicable Non-Core Currency Borrowers in the respective Ap-
plicable Currencies, provided, however, that immediately
after giving effect thereto:
(i) the Aggregate Credit Exposure shall not exceed
the Aggregate Commitments,
(ii) the Aggregate Credit Exposure attributable to
all Loans and Letters of Credit designated in Non-Core
Currencies shall not exceed $60,000,000,
(iii) with respect to any Applicable Currency,
(x) the aggregate principal amount of the Individual
Currency Loans of such Lender designated in such
Applicable Currency shall not exceed such Lender's
Individual Currency Commitment for such Applicable
Currency and (y) the sum of the aggregate principal
amount of the Individual Currency Loans of all Lenders
in such Applicable Currency and the Letter of Credit
Exposure attributable to all Letters of Credit issued in
such Applicable Currency (determined on the basis of the
Dollar Equivalent of each such Individual Currency Loan
and each such Letter of Credit) shall not exceed
$5,000,000, and
(iv) with respect to each Lender (x) the aggregate
principal amount of all Individual Currency Loans then
outstanding from such Lender (determined on the basis of
the Dollar Equivalent of each such Individual Currency
Loan), plus (y) the aggregate principal amount of all
Revolving Loans then outstanding from such Lender (de-
termined on the basis of the Dollar Equivalent for each
outstanding Alternate Currency Revolving Loan), plus (z)
the SL/LC Credit Exposure of such Lender, shall not ex-
ceed such Lender's Commitment.
During the Commitment Period, the Non-Core Currency Borrowers
may borrow, prepay in whole or in part and reborrow Indi-
vidual Currency Loans under the Aggregate Individual Currency
Commitments, 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 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 bor-
rowing of Revolving Loans shall not (x) in the case of Re-
volving 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 Cur-
rency 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 borrow-
ing 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 Dol-
lar 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 borrow-
ing 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 Ad-
ministrative Agent shall agree from time to time) in any fis-
cal quarter.
C. Notice of Borrowing
(a) Whenever a Borrower desires to borrow Loans
hereunder (excluding Swing Line Loans, Bid Loans, Negotiated
Rate Loans, Individual Currency Loans and Mandatory Borrow-
ings), the Parent and such Borrower shall give the Adminis-
trative 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 con-
firmed in writing) of each ABR Advance, (ii) no later than
10:00 A.M. at least two Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each
Eurodollar Advance and (iii) no later than 11:00 A.M. at
least three Business Days' prior written notice (or tele-
phonic notice promptly confirmed in writing) of each Alter-
nate 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 confirma-
tion 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 Ap-
plicable 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 deliv-
ery of a Notice of Borrowing) at its office set forth in Sec-
tion 11.2 no later than (x) 1:00 P.M. on the requested Bor-
rowing Date in respect of a Dollar Swing Line Loan, (y) 10:00
A.M. at least one Business Day prior to the requested Borrow-
ing 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 ir-
revocable and specify in each case (A) the name of such Swing
Line Borrower, (B) the date of such incurrence (which shall
be a Business Day) (C) the Applicable Currency for such Swing
Line Loans, (D) the aggregate principal amount of such Swing
Line Loans (stated in the Applicable Currency) and (E) the
requested amount and the requested Swing Line Interest Period
and maturity date with respect to each Swing Line Negotiated
Rate Advance and Swing Line Loan made as an ABR Advance.
Upon receipt from the Parent and the applicable Swing Line
Borrower of a Notice of Borrowing which requests one or more
Swing Line Negotiated Rate Advances, the Swing Line Lender
shall, following discussion with the Parent regarding the
proposed Swing Line Negotiated Rate for such Swing Line Nego-
tiated 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 re-
quested Borrowing Date in the case of a Swing Line Negotiated
Rate Advance in a Core Currency (other than Dollars and Ster-
ling 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 de-
sires to borrow Individual Currency Loans hereunder, the Par-
ent and such Non-Core Currency Borrower shall give the ap-
plicable Lenders and the Administrative Agent at their re-
spective 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 Busi-
ness 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
Borrower, (B) the date of such borrowing (which shall be a
Business Day), (C) the Applicable Currency for such
Individual Currency Loans, (D) the aggregate principal amount
of such Individual Currency Loans (stated in the Applicable
Currency), and (E) the Interest Period to be applicable
thereto.
(d) Without in any way limiting the obligation of
any Borrower to confirm in writing any telephonic notice of
any incurrence of Loans, the Administrative Agent or the
Swing Line Lender (in the case of any borrowing of Swing Line
Loans), as the case may be, may act without liability upon
the basis of telephonic notice of such borrowing, believed by
the Administrative Agent or the Swing Line Lender, as the
case may be, in good faith to be from such Borrower prior to
receipt of written confirmation.
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 In-
dividual Currency Loans) are to be made available in ac-
cordance with the terms hereof) on the date specified in each
Notice of Borrowing (or no later than 5:00 P.M. (New York
City time) on the date specified for the borrowing of each
Dollar Swing Line Loan and each Dollar Revolving Loan), each
Lender will make available its pro rata portion of the Loans
requested to be made on such date (or in the case of Swing
Line Loans, the Swing Line Lender shall make available the
full amount thereof), in the Applicable Currency. All such
Loans shall be made available in immediately available funds
at the Applicable Payment Office of the Administrative Agent,
and the Administrative Agent will make available to the ap-
plicable 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 pro-
ceeds 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 actu-
ally received by the Administrative 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 ac-
cepted by the applicable Borrower shall make available the
proceeds of such Lender's Bid Loan(s) (x) in the case of Dol-
lar 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 pre-
ceding two sentences will then be made available on such date
to the applicable Borrower by the Administrative Agent at the
Applicable Payment Office of the Administrative Agent to the
extent of funds actually received by the Administrative Agent
no later than 2:30 P.M. (local time in the city in which the
proceeds of such loans are to be made available in accordance
with the terms hereof).
(c) Negotiated Rate Loans. No later than 12:00
Noon (local time in the city in which the proceeds of such
Negotiated Rate Loans are to be made available in accordance
with the terms hereof) on the relevant Borrowing Date for
each Negotiated Rate Loan, the applicable Lender shall make
available the proceeds of such Negotiated Rate Loan (x) in
the case of Dollar Negotiated Rate Loans, to the Adminis-
trative 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 Negoti-
ated Rate Loans shall be made available in immediately avail-
able funds at the Applicable Payment Office of the Adminis-
trative Agent. All amounts made available to the Administra-
tive 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 Administra-
tive 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 ac-
cordance 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 Ap-
plicable Payment Office, in each case in immediately avail-
able funds in the Applicable Currency. Notwithstanding the
foregoing, upon the occurrence and during the continuance of
an Event of Default, if directed by the Required Lenders and
with the consent of the Administrative Agent, the proceeds of
all such Individual Currency Loans shall be made available in
immediately available funds at the Applicable Payment Office
of the Administrative Agent. All amounts made available to
the Administrative Agent on the applicable Borrowing Date
pursuant to the preceding two sentences will then be made
available on such date to the applicable Borrower by the Ad-
ministrative Agent at the Applicable Payment Office of the
Administrative Agent to the extent of funds actually received
by the Administrative Agent no later than 2:30 P.M. (local
time in the city in which the proceeds of such loans are to
be made available in accordance with the terms hereof).
(e) Failure to Fund. Unless the Administrative
Agent shall have been notified by a Lender prior to the
making of any Loans that such Lender does not intend to make
available to the Administrative Agent either (w) such
Lender's portion of the Loans (other than Bid Loans,
Individual Currency Loans and Negotiated Rate Loans) to be
made on such date, (x) such Lender's Bid Loan which is to be
made available to the Administrative Agent, (y) such Lender's
Negotiated Rate Loan which is to be made available to the
Administrative Agent or (z) such Lender's Individual Currency
Loan which is to be made available to the Administrative
Agent, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on
such Borrowing Date and the Administrative Agent may, in re-
liance 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 enti-
tled to recover such corresponding amount on demand from such
Lender together with all costs and expenses incurred by the
Administrative Agent in connection therewith. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the applicable Borrower. The Ad-
ministrative 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 cor-
responding amount is not made available by such Lender to the
Administrative Agent within one Business Day after such Bor-
rowing Date, the Administrative Agent shall also be entitled
to receive from the applicable Borrower such amount, together
with (w) in the case of a Loan (other than a Bid Loan, an In-
dividual 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 in-
terest 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 Nego-
tiated Rate Loan, the applicable interest rate for such Nego-
tiated 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. Noth-
ing in this Section shall be deemed to relieve any Lender
from its obligation to make Loans hereunder or to prejudice
any rights which the applicable Borrower may have against any
Lender as a result of any failure by such Lender to make
Loans hereunder.
(f) Borrower Accounts. Each Loan made to a
Borrower shall be made to its applicable payment account
specified on Exhibit T or such other account which it may
from time to time specify by written notice to the
Administrative Agent and the Lenders.
E. Payments.
(a) Loans and Fees. Except as otherwise specifi-
cally provided herein, each payment, including each prepay-
ment, 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 (lo-
cal time in the city in which such Applicable Payment Office
is located) on the due date for such payment, provided, how-
ever, that unless an Event of Default has occurred and is
continuing and the Required Lenders have directed the Admin-
istrative Agent and the Borrowers to the contrary, and the
Administrative Agent shall have consented thereto, each pay-
ment, including each prepayment, of principal and interest on
the Alternate Currency Bid Loans, the Alternate Currency Ne-
gotiated 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 Ap-
plicable 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 ag-
gregate outstanding principal balance of the Revolving Loans,
the applicable Individual Currency Loans, the applicable
Negotiated Rate Loans or the applicable Bid Loans, as the
case may be, of each Lender, in the case of principal and
interest thereon. The Parent and each Lender shall promptly
notify the Administrative Agent of the date and amount of
each direct payment made by a Borrower to such Lender in
respect of each Alternate Currency Bid Loan, each Alternate
Currency Negotiated Rate Loan and each Individual Currency
Loan pursuant to this Section 2.5(a).
(b) Swing Line Loans. Each payment, including each
prepayment, of principal and interest on the Swing Line Loans
shall be made by the applicable Swing Loan Borrower to the
Administrative Agent at its Applicable Payment Office in
funds immediately available to the Administrative Agent at
such office by 12:00 Noon (local time in the city in which
such Applicable Payment Office is located) on the due date
for such payment and, promptly upon receipt thereof by the
Administrative Agent, shall be remitted by the Administrative
Agent in like funds as received, to the Swing Line Lender.
(c) Late Payments. The failure of any of the Bor-
rowers 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 out-
standing on the applicable Loans.
(d) Alternate Currencies. The principal of and in-
terest 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 prin-
cipal 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 out-
standing principal amount of ABR Advances (other than ABR Ad-
vances 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 Cur-
rency Euro Advance, one or more new Core Currency Euro Ad-
vances 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 Cur-
rency Euro Advances being converted, (C) the outstanding
principal amount of the new Eurodollar Advances having the
same Interest Period or the new Core Currency Euro Advances
having the same Interest Period shall be in an amount equal
to $500,000 or such amount plus a whole multiple of $100,000
in excess thereof (or an amount in the applicable Alternate
Currency having a Dollar Equivalent of approximately $500,000
or such amount plus a whole multiple of approximately
$100,000 in excess thereof in the case of such Core Currency
Euro Advances), (D) the outstanding principal amount of the
new ABR Advances shall be in an amount equal to $500,000 or
such amount plus a whole multiple of $100,000 in excess
thereof, (E) ABR Advances or Eurodollar Advances may not be
converted into Eurodollar Advances if any Default or Event of
Default is in existence on the date of the conversion and the
Administrative Agent or the Required Lenders have determined
that such a conversion is not appropriate, and (F) no con-
version pursuant to this Section shall result in a greater
number of Eurodollar Advances or Core Currency Euro Advances
than is permitted under Section 2.2(d).
(b) Each such conversion shall be effected by the
applicable Borrower by giving the Administrative Agent, at
its office set forth in Section 11.2 prior to 10:00 A.M. in
the case of Dollar Loans, at least two Business Days prior
written notice and, in the case of Core Currency Euro Ad-
vances, at least three Business Days prior written notice
(each a "Notice of Conversion"), specifying the ABR Advances,
the Eurodollar Advances or the Core Currency Euro Advances to
be so converted, the date of such conversion (which shall be
a Business Day) and, if to be converted into Eurodollar Ad-
vances 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 exist-
ing Interest Period for a Eurodollar Advance or a Core Cur-
rency Euro Advance the applicable Borrower has failed to de-
liver a Notice of Conversion with respect thereto, such Bor-
rower shall be deemed to have elected (i) if a Eurodollar Ad-
vance, 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 Ad-
vance with a one month Interest Period, in either case effec-
tive as of the expiration date of such existing Interest Pe-
riod.
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.
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 Adminis-
trative 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 Nego-
tiated Rate Loan) shall be voluntarily prepaid; and
(C) neither the Aggregate Commitments, the
Swing Line Commitment, any Individual Currency Com-
mitment of any Lender, nor the Letter of Credit
Commitment shall be voluntarily reduced;
(iii) for purposes of calculating the Availability
Percentage for any Revolving Loans requested to be made
during any Borrowing/Issuance Period:
(A) any payment of any Revolving Loan,
Individual Currency Loan, Swing Line Loan or
reimbursement obligation in respect of a Letter of
Credit which is scheduled to be made during such
Borrowing/Issuance Period shall be deemed to have
been made immediately prior to the commencement of
such Borrowing/Issuance Period;
(B) any Letter of Credit which is scheduled to
expire or otherwise terminate during such
Borrowing/Issuance Period shall be deemed to have
expired or otherwise terminated immediately prior
to the commencement of such Borrowing/Issuance
Period;
(C) any Individual Currency Loans which are to
be made during such Borrowing/Issuance Period shall
be deemed to have been made immediately prior to
the making of any Revolving Loans or Swing Line
Loans, or the issuance of any Letters of Credit,
during such Borrowing/Issuance Period; and
(D) any Revolving Loans, Swing Line Loans and
Letters of Credit which are to be made or issued
during such Borrowing/Issuance Period shall be
deemed to have been made and issued simultaneously;
and
(iv) the Availability Percentage during any
Borrowing/Issuance Period shall be determined by the
Administrative Agent in accordance with this Section 2.7(b)
on the first day of such Borrowing/Issuance Period and shall
continue in effect through the last day of such
Borrowing/Issuance Period.
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 other-
wise) 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 Euro-
dollar Rate for such Interest Period.
(c) Each Borrower agrees to pay interest in re-
spect of the unpaid principal amount of each Core Currency
Euro Advance made to such Borrower from the date thereof un-
til 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 Bor-
rower from the date thereof until the maturity (whether by
acceleration or otherwise) of such Individual Currency Loan
at a rate per annum which shall, during the Interest Period
applicable thereto, be equal to the sum of the Applicable
Margin plus the Individual Currency Rate for such Interest
Period.
(e) Each Swing Line Borrower agrees to pay inter-
est 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 ac-
celeration 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 Negoti-
ated Rate for such Interest Period.
(f) Each Borrower agrees to pay interest in re-
spect 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 ap-
plicable thereto, be equal to the Bid Rate for such Interest
Period.
(g) Each Borrower agrees to pay interest in re-
spect 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 Nego-
tiated Rate Loan at a rate per annum which shall, during the
Interest Period applicable thereto, be equal to the Negoti-
ated 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 Negoti-
ated 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 Let-
ter 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 re-
spect of a Letter of Credit designated in Dollars shall not
be paid when due (whether at the stated maturity thereof, by
acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the Alternate Base
Rate plus 2%, from the date of such nonpayment until paid in
full (whether before or after the entry of a judgment
thereon). Any other overdue amount payable hereunder shall,
to the extent permitted by law, bear interest at a rate per
annum equal to the Alternate Base Rate plus 2% until paid in
full (whether before or after the entry of a judgment
thereon). All such interest shall be payable on demand.
(i) Accrued (and theretofore unpaid) interest
shall be payable (i) in respect of each ABR Advance consti-
tuting a Revolving Loan, quarterly in arrears on each Quar-
terly Payment Date, (ii) in respect of each Eurodollar Ad-
vance 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, Ne-
gotiated Rate Loan, Individual Currency Loan, Swing Line Ne-
gotiated Rate Advance and ABR Advance made as a Swing Loan,
on the last day of the Interest Period applicable thereto,
and (iv) in respect of each Loan, on any repayment or prepay-
ment (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 no-
tify 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 Ad-
vances in Sterling Pounds and interest on Individual Currency
Loans designated in Australian Dollars, Canadian Dollars,
Italian Lira and New Taiwan Dollars shall be calculated on
the basis of a 365 or 366-day year (as the case may be). Any
change in the interest rate on the Loans resulting from a
change in the Alternate Base Rate or the Federal Funds Rate
shall become effective as of the opening of business on the
day on which such change shall become effective. The
Administrative Agent shall, as soon as practicable, notify
the Parent (on behalf of all Borrowers) and the Lenders of
the effective date and the amount of each change in the BNY
Rate, but any failure so to notify shall not in any manner
affect the obligation of the Borrowers to pay interest on the
Loans in the amounts and on the dates required. Each
determination of (i) the Alternate Base Rate, a Eurodollar
Rate or a Core Currency Euro Rate by the Administrative
Agent, (ii) an Individual Currency Rate by the applicable
Lender, and (iii) an all-in cost of funds rate or any rate
based thereon by the Administrative Agent or the Reference
Lender, or such applicable Lender, as the case may be, in
each case pursuant to this Agreement shall be conclusive and
binding on all parties hereto absent manifest error. The
Borrowers acknowledge that to the extent interest payable on
ABR Advances is based on the BNY Rate, such Rate is only one
of the bases for computing interest on loans made by the
Lenders, and by basing interest payable on ABR Advances on
the BNY Rate, the Lenders have not committed to charge, and
the Borrowers have not in any way bargained for, interest
based on a lower or the lowest rate at which the Lenders may
now or in the future make loans to other borrowers.
(l) Decreases in the Applicable Margin resulting
from a change in Pricing Levels I, II, III, IV and/or V shall
become effective upon the delivery by the Parent to the Ad-
ministrative 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 ef-
fective 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 Admin-
istrative 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 Com-
mitments or the Letter of Credit Commitment, provided, how-
ever, that any such reduction shall be in the amount of
$10,000,000 or such amount plus a whole multiple of
$1,000,000 in excess thereof.
(b) Swing Line Commitment. The Parent shall have
the right, upon at least three Business Days' prior written
notice to the Administrative Agent and the Swing Line Lender,
at any time, to reduce permanently the Swing Line Commitment
in whole at any time, or in part from time to time, to an
amount not less than the aggregate principal balance of the
Swing Line Loans then outstanding (after giving effect to any
contemporaneous prepayment thereof) without premium or pen-
alty, 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 ap-
plicable Lender, at any time, to reduce permanently any Indi-
vidual Currency Commitment of such Lender in whole at any
time, or in part from time to time, to an amount not less
than the aggregate principal balance of the Individual Cur-
rency Loans of such Lender then outstanding under such Indi-
vidual Currency Commitment (after giving effect to any con-
temporaneous prepayment thereof) without premium or penalty
provided that each partial reduction of such Individual Cur-
rency 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 ap-
proximately $1,000,000 in excess thereof.
(d) In General. Each reduction of the Aggregate
Commitments shall be applied pro rata according to the
Commitment Percentage of each Lender, and each reduction in
the Letter of Credit Commitment shall be applied pro rata
according to the Availability Percentage of each Lender at
the time of such reduction. Simultaneously with each reduc-
tion of the Aggregate Commitments under this Section, the
Borrowers shall pay the Facility Fee accrued on the amount by
which the Aggregate Commitments have been reduced.
Simultaneously with each reduction of the Aggregate Commit-
ments, 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 re-
duced below an amount equal to the Aggregate Credit Exposure
(after giving effect to any prepayment of the Loans made si-
multaneously with such reduction of the Aggregate Commit-
ments). 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 Re-
volving Loan), plus (II) the aggregate principal amount of
all Individual Currency Loans then outstanding from such
Lender (determined on the basis of the Dollar Equivalent of
each such Individual Currency Loan), plus (III) the SL/LC
Credit Exposure of such Lender. The Letter of Credit
Commitment shall not be reduced below an amount equal to the
Letter of Credit Exposure.
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 Indi-
vidual Currency Loans and specifying whether the Loans to be
prepaid consist of ABR Advances, Eurodollar Advances, Core
Currency Euro Advances or Swing Line Negotiated Rate Ad-
vances, or a combination thereof, the amount to be prepaid
and the date of prepayment. Such notice shall be irrevocable
and the amount specified in such notice shall be due and pay-
able 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 no-
tify each Lender thereof in the case of Revolving Loans, the
Swing Line Lender in the case of Swing Loans and the ap-
plicable Lender or Lenders in the case of Bid Loans, Negoti-
ated Rate Loans and Individual Currency Loans. Each partial
prepayment of ABR Advances pursuant to this subsection shall
be in an aggregate principal amount of $100,000 or such
amount plus a whole multiple of $50,000 in excess thereof,
or, if less, the outstanding principal balance of the ABR
Advances. After giving effect to any partial prepayment with
respect to Eurodollar Advances or Core Currency Euro Advances
which were made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest
Period, the outstanding principal amount of such Eurodollar
Advances or Core Currency Euro Advances shall equal (subject
to Section 2.6) $500,000 or such amount plus a whole multiple
of $100,000 in excess thereof (or the Alternate Currency
Equivalent of approximately $500,000 or such amount plus a
whole multiple of approximately $100,000 in excess thereof in
the case of a prepayment of Core Currency Euro Advances).
(b) Mandatory Prepayments of Loans.
(i) Subject to clause (ii) below with respect
to Swing Line Loans and clause (iii) below with respect to
the Individual Currency Loans of each Lender, simultaneously
with each reduction of the Aggregate Commitments under Sec-
tion 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 Bor-
rowers shall prepay the Swing Line Loans by the amount, if
any, by which the outstanding principal balance of the Swing
Line Loans (determined on the basis of the Dollar Equivalent
for each outstanding Alternate Currency Swing Line Loan) ex-
ceeds the amount of the Swing Line Commitment as so reduced.
(iii) Simultaneously with each reduction of
the Individual Currency Commitment of any Lender under Sec-
tion 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 Cur-
rency Commitment by the amount, if any, by which the out-
standing principal balance of such Individual Currency Loans
exceeds the amount of such Individual Currency Commitment as
so reduced.
(iv) If on any date that the Dollar Equivalent
is required to be calculated pursuant to Section 11.6 the
Aggregate Credit Exposure shall exceed the Aggregate Commit-
ments, 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 re-
spect of any Eurodollar Advance, Core Currency Euro Advance,
Swing Line Negotiated Rate Advance, Individual Currency Loan,
Negotiated Rate Loan or Bid Loan, in whole or in part, prior
to the last day of the Interest Period applicable thereto,
the applicable Borrower agrees to indemnify the Lenders in
accordance with Section 2.15.
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 Section), shall be by telephone
(confirmed in writing promptly on the same day by the de-
livery 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 re-
sult 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 re-
spect to each Bid Loan be less than $500,000 or such amount
plus a whole multiple of $100,000 in excess thereof (or ap-
proximately the Dollar Equivalent thereof in the case of Al-
ternate Currency Bid Loans), (iii) the Bid Interest Period(s)
(up to three Bid Interest Periods may be requested pursuant
to each Bid Request) therefor and the last day of each such
Interest Period and (iv) the Applicable Currency for each Bid
Loan. A Bid Request that does not conform substantially to
the form of Exhibit F shall be rejected, and the Administra-
tive Agent shall promptly notify the applicable Borrower of
such rejection.
(b) Each Lender in its sole discretion may (but is
not obligated to) submit one or more Bids to the Administra-
tive Agent and the Parent not later than 9:30 A.M. (i) one
Business Day prior to the proposed Borrowing Date specified
in such Bid Request in the case of a Bid Loan (such 9:30 A.M.
time on such Business Days each being herein called a "Bid
Submission Deadline"), by fax or in writing, and thereby ir-
revocably offer to make all or any part (any such part re-
ferred to as a "Portion") of any Bid Loan described in the
relevant Bid Request, at a rate of interest per annum (each a
"Bid Rate") specified therein, in an aggregate principal
amount of not less than $500,000 or such amount plus a whole
multiple of $100,000 in excess thereof (or approximately the
Dollar Equivalent thereof in the case of Alternate Currency
Bid Loans), provided that Bids submitted by the Adminis-
trative Agent may only be submitted if the Administrative
Agent notifies the Parent and the applicable Borrower of the
terms of its Bid not later than fifteen minutes prior to the
Bid Submission Deadline. Multiple Bids may be delivered to
and by the Administrative Agent. The aggregate Portions of
Bid Loans for any or all Interest Periods offered by each
Lender in its Bid may exceed the Maximum Request contained in
the relevant Bid Request, provided that each Bid shall set
forth the maximum aggregate amount of the Bid Loans offered
thereby which the applicable Borrower may accept (the
"Maximum Offer"), which Maximum Offer shall not exceed the
Maximum Request.
(c) The Administrative Agent shall promptly give
notice by telephone (promptly confirmed in writing) to the
Parent and the applicable Borrower of all Bids received by
the Administrative Agent which comply in all material re-
spects with this Section prior to the Bid Submission Dead-
line. The applicable Borrower shall, in its sole discretion
but subject to Section 2.11(d), irrevocably accept or reject
any such Bid (or any Portion thereof) not later than 10:30
A.M. one Business Day prior to the proposed Borrowing Date by
notice to the Administrative Agent by telephone (confirmed in
writing in the form of a Bid Accept/Reject Letter promptly
the same day). Promptly on the day of the Bid Submission
Deadline, the Administrative Agent will give notice in the
form of a Bid Loan Confirmation to each Lender that submitted
a Bid as to the extent, if any, that such Lender's Bid shall
have been accepted. If the Administrative Agent fails to re-
ceive notice from the applicable Borrower of its acceptance
or rejection of any Bids at or prior to 10:30 A.M. on the ap-
plicable day, all such Bids shall be deemed to have been re-
jected by the applicable Borrower, and the Administrative
Agent will give to each Lender which submitted a Bid notice
of such rejection by telephone on such day.
(d) If the applicable Borrower accepts a Portion
of a proposed Bid Loan for a single Interest Period at the
Bid Rate provided therefor in a Lender's Bid, such Portion
shall be in a principal amount of $500,000 or such amount
plus a whole multiple of $100,000 in excess thereof (or ap-
proximately the Dollar Equivalent thereof in the case of Al-
ternate Currency Bid Loans), subject to such lesser alloca-
tion as may be made pursuant to the provisions of this sub-
section. The aggregate principal amount of Bid Loans ac-
cepted 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 Bor-
rower 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 succes-
sively 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 Bor-
rower 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, pro-
vided, 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 no-
tify 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 Confirmation Request, specifying (i) the pro-
posed 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 Borrow-
ing 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 ap-
proximately the Dollar Equivalent thereof in the case of Al-
ternate Currency Negotiated Rate Loans), (iii) the applicable
rate of interest therefor (the "Negotiated Rate"), (iv) the
Negotiated Rate Interest Period therefor and the last day of
such Negotiated Rate Interest Period, and (v) the Applicable
Currency therefor. If such Negotiated Rate Confirmation Re-
quest is in all respects satisfactory to such Lender, it
shall promptly sign a copy thereof and deliver a copy thereof
to such Borrower, the Parent and the Administrative Agent
(the "Negotiated Rate Confirmation").
(b) Each Lender which makes a Negotiated Rate Loan
shall notify the Administrative Agent promptly of the making
thereof (unless the proceeds of such Negotiated Rate Loan
were advanced to the Administrative Agent).
(c) All notices required by this Section shall be
given in accordance with Section 11.2.
(d) Each Negotiated Rate Loan shall be due and
payable on the earlier of (x) the last day of the Interest
Period applicable thereto and (y) the Maturity Date.
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 Indemni-
fied 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 Admin-
istrative 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 Indemni-
fied 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 li-
ability 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 Indem-
nified 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 Administra-
tive Agent and the applicable Indemnified Tax Person satis-
factory 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 sub-
ject to Section 2.13(a)) with respect to any sum paid or pay-
able 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
pursuant to Section 2.13(a) or (b), such Credit Party agrees
to pay to the applicable Indemnified Tax Person, within 5
Business Days of written request therefor, an amount equal to
all Taxes imposed with respect to such amounts as such
Indemnified Tax Person shall determine in good faith are
payable by such Indemnified Tax Person or any affiliate
thereof in respect of such amounts and in respect of any
amounts paid to or on behalf of such Indemnified Tax Person
pursuant to this clause (c).
(d) Exception for Existing Taxes. No amount shall
be required to be paid to any Indemnified Tax Person under
Section 2.13(a)(iii) or (b) with respect to an Indemnified
Tax to the extent that such Indemnified Tax would have been
required to have been paid under any law, rule, regulation,
order, directive, treaty or guideline in effect on the Effec-
tive 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 de-
liver to the Administrative Agent for transmission to the
Parent, on or prior to the first Borrowing Date (in the case
of each Lender listed on the signature pages hereof) or on
the effective date of the Assignment and Acceptance Agreement
or master assignment and acceptance agreement pursuant to
which it becomes a Lender in accordance with Section 11.1 or
11.7, (in the case of each other Lender), and at such other
times as may be necessary in the determination of the Parent,
any Credit Party or the Administrative Agent (each in the
reasonable exercise of its discretion), such certificates,
documents or other evidence, properly completed and duly ex-
ecuted by such Lender (including, without limitation, Inter-
nal 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 un-
der Section 2.13(a)(iii) if such Lender shall have failed to
satisfy the requirements of the immediately preceding sen-
tence; 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 effec-
tive date of the Assignment and Acceptance Agreement or mas-
ter 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 ob-
ligation 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 prop-
erly 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 im-
mediately 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 informa-
tion 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 pay-
ments made in respect of any Alternate Currency Loan or Let-
ter 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 Indem-
nified Tax Person is or becomes unable by virtue of any ap-
plicable law, regulation or treaty, to establish such exemp-
tion or reduction, such Credit Party shall nonetheless remain
obligated under Subsection 2.13(a) to pay the amounts
described therein, and provided further, that no Indemnified
Tax Person shall be required to take any action hereunder
which, in the sole discretion of such Indemnified Tax Person,
would cause such Indemnified Tax Person or any affiliate
thereof to suffer a material economic, legal or regulatory
disadvantage.
(g) Adverse Tax Position.
(i) An "Excess Tax" shall be the excess of
(x) the Tax imposed, levied, collected, withheld or assessed
by any Governmental Authority without the United States from
which a payment is made by or on behalf of a Credit Party
subject to an Adverse Tax Position or in which such Credit
Party or an affiliate has an office or is deemed to be doing
business, over (y) the Tax which would be imposed, levied,
collected, withheld or assessed by such Governmental Author-
ity, 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 deduction or withholding for, any Excess Tax. If any
Credit Party or any other Person is required by any law,
rule, regulation, order, directive, treaty or guideline to
make any deduction or withholding on account of any Tax from
any Required Payment with respect to any Indemnified Tax Per-
son and if all or a portion of such Tax represents Excess
Tax:
(A) such Credit Party shall notify the
Administrative Agent and such Indemnified Tax Person of any
such requirement or any change in any such requirement as
soon as such Credit Party becomes aware of it;
(B) such Credit Party shall pay such Ex-
cess Tax before the date on which penalties attach thereto,
such payment to be made (if the liability to pay is imposed
on such Credit Party) for its own account or (if the
liability is imposed on such Indemnified Tax Person) on
behalf of and in the name of such Indemnified Tax Person;
(C) such Credit Party shall pay to such
Indemnified Tax Person an additional amount such that such
Indemnified Tax Person shall receive on the due date therefor
an amount equal to the Required Payment had no such deduction
or withholding been required with respect to such Excess Tax;
and
(D) such Credit Party shall, within 30
days after paying such Excess Tax, deliver to the Administra-
tive 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 af-
filiate thereof is required by any law, rule, regulation, or-
der, 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 no-
tify such Credit Party of any such payment of Excess Tax; and
(B) such Credit Party shall pay to such
Indemnified Tax Person the amount of such Excess Tax within 5
Business Days of such notice.
(v) If any amounts are payable by a Credit
Party in respect of Excess Tax pursuant to Section
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 de-
termined (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 Ad-
vance, Core Currency Euro Advance or Individual Currency
Loan that, by reason of any changes arising after the
Effective Date affecting the applicable interbank mar-
ket, adequate and fair means do not exist for ascertain-
ing the applicable interest rate on the basis provided
for in the definition of the Eurodollar Rate, the Core
Currency Euro Rate or the Individual Currency Rate, as
the case may be; or
(ii) at any time that such Lender has incurred
increased costs or reductions in the amounts received or
receivable hereunder with respect to any Fixed Rate
Loan, in each case by an amount such Lender deems to be
material, because of any change since the Effective Date
(or in the case of any Bid Loan, subsequent to ac-
ceptance 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 Confirma-
tion for such Negotiated Rate Loan) in any law, rule,
regulation, order or guideline applicable to such Lender
or the compliance by such Lender with any request
(whether or not having the force of law) from any
Governmental Authority made subsequent to the Effective
Date (or in the case of any Bid Loan, subsequent to
acceptance by a Borrower of such Bid Loan, and, in the
case of any Negotiated Rate Loan, subsequent to the date
of such Lender's execution of the Negotiated Rate
Confirmation for such Negotiated Rate Loan) or in the
interpretation or administration thereof and including
the introduction of any new law, rule, regulation,
order, guideline or request, such as, for example, but
not limited to: (A) a change in the basis of taxation of
payment to any Lender of the 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, spe-
cial or other reserve) or similar requirements (except
to the extent included in the computation of the respec-
tive Eurodollar Rate, the Core Currency Euro Rate, Swing
Line Negotiated Rate, Negotiated Rate, Individual Cur-
rency Rate or Bid Rate, as the case may be), or any spe-
cial deposit, assessment or similar requirement against
assets of, deposits with or for the account of, or
credit extended by, any Lender (or its Applicable Lend-
ing Office); or
(iii) at any time that the making or continu-
ance of any Fixed Rate Loan has been made (x) unlawful
by any law, rule, regulation or order or (y) impossible
by compliance by any Lender in good faith with any gov-
ernmental 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 deter-
mined 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 bor-
rowing of Alternate Currency Loans in such Core Currency
or such Non-Core Currency, as the case may be;
then, and in any such event, such Lender, in the case of
clause (ii) or (iii) above, or the Administrative Agent, the
Reference Lender or the applicable Lender, as the case may
be, in the case of clause (i) or (iv) above, shall promptly
give notice (by telephone confirmed in writing) to the Parent
(on behalf of all Borrowers) and, except for the Administra-
tive Agent, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly trans-
mit 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 ap-
plicable 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 circum-
stances 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 Indi-
vidual Currency Loans to be made by such applicable Lender,
as the case may be, which have not yet been incurred (includ-
ing by way of conversion) shall be deemed rescinded by the
applicable Borrower and (B) in the event that any Core Cur-
rency Euro Advance or Individual Currency Loan is so af-
fected, 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 re-
quired 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, sub-
mitted 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 af-
fected Core Currency or Individual Currency Loans from the
applicable Lender in the affected Non-Core Currency, as the
case may be, shall no longer be available until such time as
the Reference Lender or such applicable Lender, as the case
may be, notifies the Parent (on behalf of all Borrowers), the
Administrative Agent and the Lenders that the circumstances
giving rise to the notice referred to above by the Reference
Lender or such applicable Lender, as the case may be, to the
Parent (on behalf of all Borrowers) and the Administrative
Agent no longer exists, and any Notice of Borrowing given by
the affected Borrower with respect to such Core Currency Euro
Advances or such Individual Currency Loans, as the case may
be, which have not yet been incurred shall be deemed re-
scinded by such affected Borrower. Each of the Administra-
tive Agent, the Reference Lender and the Lenders agree that
if it gives notice to any Borrower of any of the events de-
scribed 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 Admin-
istrative Agent, if such event ceases to exist. If any such
event described in clause (iii) above with respect to Euro-
dollar Advances, Core Currency Euro Advances or Individual
Currency Loans ceases to exist as to a Lender, the obliga-
tions of such Lender, as the case may be, to make Eurodollar
Advances, Core Currency Euro Advances or Individual Currency
Loans and to convert Eurodollar Advances to new Eurodollar
Advances or convert Core Currency Euro Advances 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 af-
fected 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 con-
version, 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 af-
fected Lender, (A) in the case of a Eurodollar Advance, re-
quire 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 rea-
sonably request with a view to minimizing the obligations of
such Borrower under Section 2.15.
(c) If any Lender determines that after the Effec-
tive Date the introduction of or any change in any applicable
law, rule, regulation, order, guideline, directive or compli-
ance by such Lender or any corporation controlling such
Lender with any request (whether or not having the force of
law) from any Governmental Authority concerning capital
adequacy, or any change in interpretation or administration
thereof by any Governmental Authority, in each case made
subsequent to the date hereof, will have the effect of
reducing the rate of return on the capital required to be
maintained by such Lender or any corporation controlling such
Lender based on the existence of such Lender's Commitment or
Individual Currency Commitments hereunder or its obligations
under the Loan Documents to a level below that which such
Lender or such corporation could have achieved but for such
application or compliance (taking into account such Lender's
or such corporation's policies with respect to capital ad-
equacy) 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 in-
creased 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 determining
such additional amounts, each Lender will act reasonably and
in good faith and will use averaging and attribution methods
which are reasonable, provided that such Lender's reasonable
good faith determination of compensation owing under this
Section 2.14(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each
Lender, upon determining that any additional amounts will be
payable pursuant to this Section 2.14(c), will give prompt
written notice thereof to the Parent (on behalf of all Bor-
rowers), 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 re-
quest by such Lender for compensation under this Section
2.14. Determinations and allocations by any Lender for pur-
poses 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 un-
less, at the time it requests such compensation, it is the
policy or general practice of such Lender to request compen-
sation for comparable costs in similar circumstances under
comparable provisions of other credit agreements for compa-
rable customers unless specific facts or circumstances ap-
plicable to any Borrower or the transactions contemplated by
the Loan Documents would alter such policy or general prac-
tice, provided that nothing in this Section 2.14(e) shall
preclude a Lender from waiving the collection of similar
costs from one or more of its other customers.
(f) If any Lender fails to give the notice de-
scribed 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 com-
pensation 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 cur-
rency exchange) incurred by reason of the liquidation or re-
employment of deposits or other funds required by such Lender
to fund its Fixed Rate Loans but excluding any loss of an-
ticipated 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 Negoti-
ated Rate Confirmation or a Bid accepted by a Borrower; (ii)
if any repayment (including any repayment made pursuant to
Section 2.10 or as a result of an acceleration of the Loans
pursuant to Section 9) or conversion of any of such
Borrower's Fixed Rate Loans occurs on a date which is not the
last day of an Interest Period with respect thereto; (iii) if
any prepayment of any of such Borrower's Fixed Rate Loans is
not made on any date specified in a notice of prepayment
given by such Borrower; or (iv) as a consequence of (x) any
other default by such Borrower to repay its Loans when re-
quired 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 Ap-
plicable 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 eco-
nomic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the op-
eration of such Section. Nothing in this Section shall af-
fect 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 dif-
ferent office, provided that such Lender shall promptly no-
tify 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 Of-
fice 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 Sec-
tion 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 ter-
mination of the Aggregate Commitments, the Swing Line Commit-
ment, the Individual Currency Commitments, the Letter of
Credit Commitment the payment of the Loans, the reimbursement
obligations in respect of the Letters of Credit and all other
amounts payable under the Loan Documents.
R. Use of Proceeds
The proceeds of the Loans shall be used to refi-
nance the Indebtedness set forth on Schedule 5.8 and for gen-
eral 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 agree-
ment 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 Pe-
riod 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 ac-
count of such Letter of Credit Applicant in one or more Non-
Core Currencies. The Letter of Credit Exposure at any one
time outstanding shall not exceed the lesser of (i) the
amount of the Letter of Credit Commitment and (ii) the
excess, if any, of the sum of the Aggregate Commitments over
the sum of the aggregate outstanding principal amount of all
Loans (determined on the basis of the Dollar Equivalent for
each outstanding Alternate Currency Loan). The Letter of
Credit Exposure at any one time outstanding attributable to
all Letters of Credit issued in Non-Core Currencies shall not
exceed the excess, if any, of $60,000,000 over the Aggregate
Credit Exposure at such time attributable to all Loans
designated in Non-Core Currencies. The sum of the aggregate
principal amount of the Individual Currency Loans of all
Lenders at any one time outstanding in any Non-Core Currency
and the Letter of Credit Exposure at such time attributable
to all Letters of Credit issued in such Non-Core Currency
(determined on the basis of the Dollar Equivalent of each
such Individual Currency Loan and each such Letter of Credit)
shall not exceed $5,000,000. Each Letter of Credit shall
have an expiration date which shall not exceed the earlier of
(x) twelve months from the date of issuance thereof and (y)
30 days immediately preceding the Maturity Date. No Letter
of Credit shall be issued, and no amendment to any Letter of
Credit shall be issued which would increase the stated amount
or extend the expiration date of such Letter of Credit, (i)
if the Administrative Agent or any Lender by notice to the
Administrative Agent and the applicable Letter of Credit Ap-
plicant 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 gen-
eral 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 draw-
ing may be made under such Letter of Credit and the documen-
tation to be required in respect thereof, (iii) the maximum
amount to be available under such Letter of Credit, (iv) the
requested date of issuance and (v) the applicable Currency.
Upon receipt of such Letter of Credit Request from such Let-
ter of Credit Applicant and the Parent, the Administrative
Agent shall promptly notify the Issuing Bank and each other
Lender thereof. Each Letter of Credit shall be in form and
substance reasonably satisfactory to the Issuing Bank, and
adequate and fair means in the sole discretion of the Issuing
Bank shall exist for the issuance thereof, with such provi-
sions with respect to the conditions under which a drawing
may be made thereunder and the documentation required in re-
spect of such drawing as the Issuing Bank shall reasonably
require and as may be acceptable to such Letter of Credit
Applicant and the Parent. Such Letter of Credit shall be
used solely for the purposes described therein and herein.
The Issuing Bank shall, on the proposed date of issuance and
subject to the other terms and conditions of this Agreement,
issue such Letter of Credit.
(c) Each payment by the Issuing Bank of a draft
drawn under a Letter of Credit designated in a Core Currency
shall give rise to an obligation on the part of the ap-
plicable 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 Cur-
rency shall give rise to an obligation on the part of the ap-
plicable 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 Administra-
tive 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 Reim-
bursement Amount"). In connection with each obligation of a
Letter of Credit Applicant to pay a Dollar Reimbursement
Amount under this Section 2.19(d), the Issuing Bank shall
deliver to such Letter of Credit Applicant, the Parent and
the Administrative Agent a written statement setting forth
such Dollar Reimbursement Amount. The Issuing Bank's
determination of such Dollar Reimbursement Amount shall be
conclusive absent manifest error.
T. Letter of Credit Participation and Funding Commit-
ments
(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-
abilities shall be unconditional and without regard to the
occurrence of any Default or Event of Default or the compli-
ance 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 reim-
bursement 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 no-
tice, and provided that no Non-Issuance Event shall have
occurred and be continuing with respect to such Letter of
Credit, such Lender (other than the Issuing Bank in its
capacity as a Lender) shall make available to the
Administrative Agent for the account of the Issuing Bank its
Availability Percentage at such time of the amount of such
unreimbursed draft or, if such Letter of Credit is designated
in a Non-Core Currency, the applicable Dollar Reimbursement
Amount, at the Applicable Payment Office of the Administra-
tive Agent in the applicable Core Currency or, if such Letter
of Credit is designated in a Non-Core Currency, at the
applicable office designated by the Administrative Agent
pursuant to Section 2.19(d) in Dollars, and, in each case, in
immediately available funds. The Administrative Agent shall
distribute the payments made by each Lender (other than the
Issuing Bank in its capacity as a Lender) pursuant to the
immediately preceding sentence to the Issuing Bank promptly
upon receipt thereof in like funds as received. Each Lender
shall indemnify and hold harmless the Administrative Agent
and the Issuing Bank from and against any and all losses, li-
abilities (including liabilities for penalties), actions,
suits, judgments, demands, costs and expenses (including rea-
sonable 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 ac-
cordance with this clause (b) above (except in respect of
losses, liabilities or other obligations suffered by the Is-
suing 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 pay-
ments made by the Issuing Bank by reason of its gross negli-
gence 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 Lender's
payment is due until the date such payment is received by the
Administrative Agent. The Administrative Agent shall distrib-
ute such interest payments to the Issuing Bank upon receipt
thereof in like funds as received.
(c) Whenever the Administrative Agent or the Issu-
ing Bank is reimbursed by any Letter of Credit Applicant, for
the account of the Issuing Bank, for any payment under a Let-
ter of Credit and such payment relates to an amount previ-
ously paid by a Lender in respect of its Availability Per-
centage 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 pay-
ment under or in respect of such Letter of Credit shall be
absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to
payment which such Letter of Credit Applicant or any of its
Subsidiaries may have or have had against the beneficiary of
such Letter of Credit, the Administrative Agent, the Issuing
Bank, as issuer of such Letter of Credit, any Lender, the
Swing Line Lender or any other Person, including any defense
based on the failure of any drawing to conform to the terms
of such Letter of Credit, any drawing document proving to be
forged, fraudulent or invalid, or the legality, validity,
regularity or enforceability of such Letter of Credit.
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 ap-
plicable any reserve, special deposit, assessment or similar
requirement against any Letter of Credit issued or partici-
pated 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 re-
ferred 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 Let-
ter of Credit or the cost to any Lender of its obligations
pursuant to Section 2.20, or the cost to the Administrative
Agent of performing its functions hereunder with respect to
such Letter of Credit, in any case by an amount which the
Administrative Agent, the Issuing Bank or such Lender, as the
case may be, deems material, then, upon demand by the Admin-
istrative Agent, the Issuing Bank or such Lender, as the case
may be, the applicable Letter of Credit Applicant shall im-
mediately 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 Is-
suing Bank or such Lender, as the case may be, as a result of
any event mentioned in clauses (a) or (b) above, submitted by
the Administrative Agent, the Issuing Bank or such Lender, as
the case may be, to such Letter of Credit Applicant shall be
conclusive, absent manifest error, as to the amount thereof.
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 ex-
ecuted 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 satisfac-
tory to the Administrative Agent) taken by it to authorize
such Borrower Addendum, the Loan Documents and the transac-
tions contemplated thereby, (ii) attaching a true and com-
plete copy of its certificate of incorporation, by-laws or
other organizational documents, (iii) setting forth the in-
cumbency 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 Administrative Agent and (v) attaching a
certificate of good standing (or equivalent) issued by the
jurisdiction of its incorporation. If any such document is
not in English, such document shall be accompanied by a
certified English translation thereof. Upon receipt of a
Borrower Addendum and the supporting documentation referred
to above, the Administrative Agent shall confirm such Bor-
rower Addendum by signing a copy thereof and shall deliver a
copy thereof to the Parent and each Lender. Thereupon the
Subsidiary which executed such Borrower Addendum shall become
a "Borrower" hereunder. In the event that such additional
Borrower is not a corporation organized under the laws of a
jurisdiction in which any other Borrower is organized (and
whose principal office is not located in a jurisdiction in
which any other Borrower's principal office is located), this
Agreement and the other Loan Documents will be deemed amended
by adding definitions comparable to the definitions ap-
plicable 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, Ne-
gotiated 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 Cur-
rency 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 Adminis-
trative 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 obli-
gations 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 respec-
tive Borrower's obligations in respect of the Loans, the Let-
ters 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 Effec-
tive Date (in the case of each Lender listed on the signature
pages hereof) or since the effective date of the Assignment
and Acceptance Agreement pursuant to which it became a Lender
(in the case of each other Lender) in any applicable law,
rule, regulation, order, directive, treaty or guideline
(whether or not having the force of law) or in the
interpretation or administration thereof (including the
introduction of any new law, rule, regulation, order,
directive, treaty or guideline), (ii) any Lender shall have
failed to make available a Loan on the date on which and in
the amount in which it was obligated to do so and shall not
have cured such failure within three Business Days or (iii)
any Lender shall have demanded any payment under Section 2.14
or excused itself from funding a Loan pursuant to Section
2.14, the Company shall have the right, in accordance with
the requirements of Section 11.7(b), if no Default or Event
of Default shall exist to replace up to two such Lenders
(each a "Replaced Lender") with one or more other assignees
(each, a "Replacement Lender"), reasonably acceptable to the
Swing Line Lender and the Issuing Bank, provided that (I) at
the time of any replacement pursuant to this Section, the
Replacement Lender shall enter into one or more Assignment
and Acceptance Agreements pursuant to Section 11.7(b) (with
the Assignment Fee payable pursuant to said Section 11.7(b)
to be paid by the Replacement Lender) pursuant to which the
Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and in each case participations in
Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (w) the Replaced Lender in respect
thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (B) an amount equal
to all drawings on all Letters of Credit that have been
funded by (and not reimbursed to) such Replaced Lender, to-
gether 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 re-
placement. 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 Re-
placement Lender shall become a Lender hereunder and the Re-
placed Lender shall cease to constitute a Lender hereunder,
except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 2.13,
2.14, 2.15, 2.22, 11.5 and 11.10), which shall survive as to
such Replaced Lender.
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:
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
Commitments 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 authorized,
issued and outstanding capital stock of the Parent and each
such Subsidiary (or partnership or other interests, as the
case may be) is as set forth on, Schedule 4.1. The shares
of, or partnership or other interests in, each Subsidiary of
the Parent are owned beneficially and of record by the Parent
or another Subsidiary of the Parent, are free and clear of
all Liens except as otherwise permitted by Section 8.3, and
are duly authorized, validly issued, fully paid and
nonassessable except, in the case of any Subsidiary organized
under the laws of the State of New York, for any liability
that may arise under the provisions of Section 630 of the
Business Corporation Law of the State of New York. As of the
date of this Agreement, except as set forth on Schedule 4.1,
(a) neither the Parent nor any of its Subsidiaries has issued
any securities convertible into, or options or warrants for,
any common or preferred equity securities thereof, (b) there
are no agreements, voting trusts or understandings binding
upon the Parent or any of its Subsidiaries with respect to
the voting securities of the Parent or any of its
Subsidiaries or affecting in any manner the sale, pledge, as-
signment or other disposition thereof, including any right of
first refusal, option, redemption, call or other right with
respect thereto, whether similar or dissimilar to any of the
foregoing, and (c) the Parent owns, directly or indirectly,
all of the outstanding capital stock of each of its
Subsidiaries.
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 requi-
site 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
incorporation and by-laws or partnership agreement, as the
case may be. No consent or approval of, or other action by,
shareholders of the Parent, any Borrower, any Governmental
Authority or any other Person, which has not already been
obtained, is required to authorize in respect of the Parent
or any of its Subsidiaries, or is required in connection with
the execution, delivery and performance by the Parent and
each of its Subsidiaries of, the Loan Documents to which it
is a party, or is required as a condition to the enforce-
ability against the Parent or such Subsidiary of the Loan
Documents to which it is a party.
D. Binding Agreement
The Loan Documents constitute the valid and
legally binding obligations of the Parent and each of its
Subsidiaries to the extent the Parent or such Subsidiary, as
the case may be, is a party thereto, enforceable in ac-
cordance with their respective terms, except as such enforce-
ability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the en-
forcement of creditors' rights generally and by equitable
principles relating to the availability of specific per-
formance 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
Subsidiaries, or maintained by the Parent or any of its Sub-
sidiaries, or which may affect the Property of the Parent or
any of its Subsidiaries, at law or in equity, before any Gov-
ernmental 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 of, any Loan Document. The execution, delivery or
performance by the Parent and each of its Subsidiaries of the
terms of each Loan Document to which it is a party will not
constitute a default under, or result in the creation or
imposition of, or obligation to create, any Lien upon the
Property of the Parent or any of its Subsidiaries pursuant to
the terms of any such mortgage, indenture, contract or
agreement which defaults or Liens, individually or in the
aggregate, would have or result in a Material Adverse effect.
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
reasonably be expected to have a Material Adverse effect, and
no tax Liens have been filed against the Parent or any of its
Subsidiaries and no claims are being asserted with respect to
such taxes which are required by GAAP (as in effect on the
Effective Date) to be reflected in the Financial Statements
and are not so reflected therein. The charges, accruals and
reserves on the books of the Parent and each of its
Subsidiaries with respect to all Federal, state, local,
foreign and other taxes are considered by the management of
the Parent and the Borrowers to be adequate, and neither the
Parent nor any Borrower knows of any unpaid assessment which
is or might be 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, injunc-
tion, decree or decision of any Governmental Authority which
default could reasonably be expected to have a Material Ad-
verse effect. The Parent and each of its Subsidiaries is
complying with all applicable statutes, rules and regulations
of all Governmental Authorities, a violation of which could
reasonably be expected to have a Material Adverse effect.
The Parent and each of its Subsidiaries has filed or caused
to be filed with all Governmental Authorities all reports,
applications, documents, instruments and information required
to be filed pursuant to all applicable laws, rules, regula-
tions and requests which, if not so filed, could reasonably
be expected to have a Material Adverse effect. Each
Borrower, prior to each borrowing by it hereunder in any
jurisdiction, has obtained all necessary approvals and
consents of, and has filed or caused to be filed all reports,
applications, documents, instruments and information required
to be filed pursuant to all applicable laws, rules,
regulations and requests of, all Governmental Authorities in
connection with such borrowing in such jurisdiction.
I. Governmental Regulations
Neither the Parent nor any of its Subsidiaries nor
any corporation controlling the Parent or any of its Subsid-
iaries or under common control with the Parent or any of its
Subsidiaries is subject to regulation under the Public Util-
ity Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, in each case as amended, or
is subject to any statute or regulation which regulates the
incurrence of Indebtedness, including statutes or regulations
relative to common or contract carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other
public utility services.
J. Property
Each of the Parent and each of its Subsidiaries
has good and marketable title to, or a valid leasehold inter-
est 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. Any-
thing 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.
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 con-
nection with the transactions contemplated hereby, contains
or will contain, as of its date, a misstatement of material
fact, or omits or will omit to state, as of its date, a
material fact required to be stated in order to make the
statements therein contained not misleading in the light of
the circumstances under which made.
M. Plans
(a) Each Employee Benefit Plan of the Parent, each
of its Subsidiaries and each ERISA Affiliate is in compliance
withERISA and the Code, where applicable, in all material re-
spects. 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 withdrawal from all Pension Plans which are
Multiemployer Plans does not exceed $2,000,000. The Parent,
each of its Subsidiaries and each ERISA Affiliate has made
all contributions or payments to or under each such Pension
Plan required by law or the terms of such Pension Plan or any
contract or agreement where the failure to make such
contributions or payments could reasonably be expected to
have a Material Adverse effect. No liability to the PBGC has
been, or is expected by the Parent, any of its Subsidiaries
or any ERISA Affiliate to be, incurred by the Parent, any of
its Subsidiaries or any ERISA Affiliate where such liability
could reasonably be expected to have a Material Adverse
effect. Liability, as referred to in this Section 4.13,
includes any joint and several liability. Each Employee Ben-
efit 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 Sec-
tion 4980B of the Code.
(b) All contributions required to be made with re-
spect 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 ap-
plicable laws, statutes, rules, regulations and orders and
has been maintained, where required, in good standing with
applicable Governmental Authorities. Neither the Parent nor
any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any
Foreign Pension Plan. The present value of the accrued
benefit liabilities (whether or not vested) under each
Foreign Pension Plan required to be funded, determined as of
the end of the most recently ended fiscal year on the basis
of actuarial assumptions, each of which is reasonable, did
not exceed the current value of the assets of such Foreign
Pension Plan allocable to such benefit liabilities by more
than the foreign exchange equivalent (based on the applicable
spot exchange rate) of $2,000,000.
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 connection with (i) any non-compliance with or
violation of the requirements of any applicable federal,
state, local or foreign environmental health or safety
statute or regulation, or (ii) the release or threatened
release of any toxic or hazardous waste, substance or
constituent, or other substance into the environment, (b) to
the best knowledge of the Parent and the Borrowers, has any
threatened or actual liability in connection with the release
or threatened release of any toxic or hazardous waste, sub-
stance or constituent, or other substance into the environ-
ment which individually or in the aggregate could reasonably
be expected to have a Material Adverse effect, (c) has
received notice of any federal, state, local or foreign
investigation evaluating whether any remedial action is
needed to respond to a release or threatened release of any
toxic or hazardous waste, substance or constituent or other
substance into the environment for which the Parent or any of
its Subsidiaries is or would be liable, which liability would
reasonably be expected to have a Material Adverse effect, or
(d) has received notice that the Parent or any of its
Subsidiaries is or may be liable to any Person under the
Comprehensive Environmental Response, Compensation and Li-
ability 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.
O. Financial Statements
The Parent has heretofore delivered to the Admin-
istrative Agent and the Lenders copies of its Form 10-K for
the fiscal year ended January 31, 1995, containing the au-
dited Consolidated Balance Sheets of the Parent and its Sub-
sidiaries as of such date and the related Consolidated State-
ments of Income, Stockholders' Equity and Cash Flows for the
fiscal year then ended (collectively, with the applicable
related notes and schedules, the "Financial Statements").
The Financial Statements fairly present the Consolidated fi-
nancial condition and results of the operations of the Parent
and its Subsidiaries as of the dates and for the periods
indicated therein and have been prepared in conformity with
GAAP as then in effect subject, in the case of interim
Financial Statements, to normal year-end adjustments. Neither
the Parent nor any of its Subsidiaries has any obligation or
liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) which, in accordance with GAAP as
then in effect, should have been disclosed in the Financial
Statements and was not. Since January 31, 1995, there has
been no Material Adverse change.
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 mate-
rial 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 ex-
pected to have a Material Adverse effect. No event has oc-
curred which permits or, to the best knowledge of the Parent
and the Borrowers, after notice or the lapse of time or both,
or any other condition, could reasonably be expected to
permit, the revocation or termination of any such franchise,
Intellectual Property, license or other right which
revocation or termination could reasonably be expected to
have a Material Adverse effect.
Q. Labor Relations
Except as set forth on Schedule 4.17, neither the
Parent nor any of its Subsidiaries is a party to any collec-
tive bargaining agreement and, to the best knowledge of the
Parent and the Borrowers, no petition has been filed or pro-
ceedings instituted by any employee or group of employees
with any labor relations board seeking recognition of a
bargaining representative with respect to the Parent or such
Subsidiary. There are no material controversies pending
between the Parent or any of its Subsidiaries and any of
their respective employees, which could reasonably be
expected to have a Material Adverse effect.
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 sub-
ject to the fulfillment of the following conditions prior to
or simultaneously with the making of such Loans or the issu-
ance of such Letters of Credit:
A. Evidence of Corporate Action
The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary
or Assistant Secretary of each Credit Party (i) attaching a
true and complete copy of the resolutions of its Board of Di-
rectors and of all documents evidencing all necessary corpo-
rate 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 Docu-
ments, 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 Administrative
Agent a guaranty, dated as of the date hereof, executed by
such Credit Party and in the form of Exhibit N (as the same
may be amended, supplemented or otherwise modified from time
to time, the "Guaranty").
C. Approvals
The Administrative Agent shall have received evi-
dence reasonably satisfactory to it that all approvals and
consents of all Governmental Authorities, and all approvals
and all consents of all other Persons, in each case which are
required to be obtained in connection with the consummation
of the transactions contemplated by the Loan Documents have
been obtained and that all required notices have been given,
and the Administrative Agent shall have received a
certificate, in all respects reasonably satisfactory to the
Administrative Agent, of the Responsible Officer to the
foregoing effect to the best knowledge of such officer.
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 Authority shall have been commenced and be
pending seeking to prevent or delay any of the foregoing or
challenging any term or provision thereof or seeking any
damages in connection therewith, and the Administrative Agent
shall have received a certificate, in all respects reasonably
satisfactory to the Administrative Agent, of the executive
officers or analogous counterparts of the Parent to the
foregoing effect to the best knowledge of such officer.
E. Approval of Special Counsel
All legal matters incident to the making of the
Loans on the first Borrowing Date shall be reasonably satis-
factory 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
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 reason-
able 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 projec-
tions), 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 ob-
ligation of the Swing Line Lender to make each Swing Line
Loan and the obligation of the Issuing Bank to issue each
Letter of Credit is subject to the fulfillment of the
following conditions precedent:
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
before such Borrowing Date.
C. Borrowing or Letter of Credit Request
The receipt by the Administrative Agent of a
Notice of Borrowing, in the case of such Loan, or a Letter of
Credit Request, in the case of a Letter of Credit, executed
by the Parent and the applicable Borrower making such
request.
D. Other Documents
The Administrative Agent shall have received such
other documents (including financial statements and projec-
tions), 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 for-
mation 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, governmental
charges, license fees and levies upon or with respect to the
Parent and such Subsidiary, and upon the income, profits and
Property thereof unless, and only to the extent, that (a)
such taxes, assessments, governmental charges, license fees
and levies shall be contested in good faith and by ap-
propriate 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 insurance carriers
against at least such risks, and in at least such amounts, as
are usually insured against by similar businesses, including
business interruption, public liability (bodily injury and
property damage), fidelity, workers' compensation (where
required) and property insurance, upon request a detailed
list of such insurance then in effect, stating the names of
the carriers thereof, the policy numbers, the insureds
thereunder, the amounts of insurance, dates of expiration
thereof, and the Property and risks covered thereby; except
that the Parent or 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 nei-
ther the Parent nor such Subsidiary shall be required to pay
or discharge or cause to be paid or discharged any such In-
debtedness, obligation or claim so long as (i) the validity
thereof shall be contested in good faith and by appropriate
proceedings diligently conducted by the Parent or such Sub-
sidiary, 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, individually or in the aggregate, have a Material
Adverse effect, and cause each of its Subsidiaries so to do
and (ii) as permitted under Sections 8.3 and 8.4.
F. Observance of Legal Requirements
Observe and comply in all material respects, and
cause each of its Subsidiaries so to do, with all laws, ordi-
nances, orders, judgments, rules, regulations, certifica-
tions, franchises, permits, licenses, directions and require-
ments 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 State-
ments of Income, Cash Flows and Shareholder's Equity for
such fiscal year, of the Parent on a Consolidated basis, set-
ting 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 Account-
ants, which report shall state that (A) the Accountants au-
dited 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 certi-
fied statements required by clause (a) above, copies of a
certificate of such Accountants stating that, in making the
examination necessary for their audit of the Consolidated
financial statements of the Parent for such fiscal year,
nothing came to their attention of a financial or accounting
nature that caused them to believe that there shall have oc-
curred 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 quar-
ters, and 105 days after the end of the last fiscal quarter,
of each fiscal year, a copy of (i) the Balance Sheet, as of
the end of such quarter, of the Parent on a Consolidated
basis and (ii) the related Statements of Income, Cash Flows
and Shareholder's Equity, of the Parent on a Consolidated
basis for (x) such quarter, and (y) the period from the be-
ginning of the then current fiscal year to the end of such
quarter, in each case in comparative form with the prior
fiscal year, all in reasonable detail and prepared in
accordance with GAAP (without footnotes and subject to
year-end adjustments), together with a certificate of the
Responsible Officer, which certificate shall state that all
such financial statements fairly present the financial
condition and results of operations of the Parent and its
Subsidiaries and have been prepared in accordance with GAAP
(but without footnotes and subject to year-end adjustments);
(d) Notwithstanding anything to the contrary con-
tained herein, the Parent may satisfy its obligation to fur-
nish (i) the Consolidated financial statements referred to in
clause (a) above by furnishing, as soon as available, and in
any event within 105 days after the end of the applicable
fiscal year, a copy of the annual audited Consolidated
financial statements of the Parent and its Subsidiaries
prepared in conformity with GAAP and as filed with the SEC
for such fiscal year, and (ii) the Consolidated financial
statements referred to in clause (c) above by furnishing, as
soon as available, and in any event within 50 days after the
end of the applicable fiscal quarter, copies of the
Consolidated financial statements of the Parent and its
Subsidiaries as filed with the SEC for the applicable fiscal
quarter;
(e) Simultaneously with the delivery of the finan-
cial statements required by clauses (a), (c) and (d) above, a
certificate of the Responsible Officer certifying that to the
best of his knowledge no condition or event has occurred
which would constitute a Default or an Event of Default, or
if so, specifying in such certificate all such violations,
conditions and events and the nature and status thereof;
(f) Within 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 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 proceed-
ing 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 autho-
rization issued to the Parent or any of its Subsidiaries by
any Governmental Authority, (iii) any refusal by any Govern-
mental Authority to renew or extend any license, permit,
franchise or other authorization, and (iv) any dispute
between the Parent or any of its Subsidiaries and any Gov-
ernmental Authority, which lapse, termination, refusal or
dispute, referred to in clause (ii), (iii) or (iv) above,
could reasonably be expected to have a Material Adverse ef-
fect;
(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 here-
after be required to file with or deliver to any securities
exchange or the SEC, and copies of all material news releases
sent to financial analysts;
(k) Prompt written notice in the event that the
Parent or any of its Subsidiaries knows, or has reason to
know, that (i) any Termination Event with respect to a
Pension Plan has occurred or will occur, (ii) any condition
exists with respect to a Pension Plan (other than a
Multiemployer Plan) which presents a material risk of
termination of such Pension Plan by the PBGC, imposition of
an excise tax on the Parent, any of its Subsidiaries or any
ERISA Affiliate or the requirement that the Parent, any of
its Subsidiaries or any ERISA Affiliate provide security to
any Pension Plan, (iii) the Parent, any of its Subsidiaries
or any ERISA Affiliate has applied for a waiver of the
minimum funding standard under Section 412 of the Code with
respect to a Pension Plan, (iv) the aggregate amount of the
Unfunded Pension Liabilities under all Pension Plans (other
than Multiemployer Plans) has increased to an amount in
excess of $2,000,000, (v) the aggregate amount of Un-
recognized Retiree Welfare Liability under all applicable Em-
ployee 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 Sec-
tion 4980B(a) of the Code, or (viii) the assessment of a
civil penalty under Section 502(c) of ERISA against the
Parent or any of its Subsidiaries, or (ix) any condition with
respect to a Multiemployer Plan exists which presents a risk
of material liability to the Parent or any of its
Subsidiaries or would reasonably be expected to have a
Material Adverse effect, in each case together with a
certificate of the Responsible Officer setting forth the
details of such event and the action which the Parent, such
Subsidiary or such ERISA Affiliate proposes to take with
respect thereto, together with a copy of all notices and fil-
ings with respect thereto;
(l) Prompt written notice in the event that the
Parent, any of its Subsidiaries or any ERISA Affiliate shall
receive a demand letter from the PBGC notifying the Parent,
such Subsidiary or such ERISA Affiliate of any final decision
finding liability of the Parent, any of its Subsidiaries or
any ERISA Affiliate and the date by which such liability must
be paid, together with a copy of such letter and a
certificate of the Responsible Officer setting forth the
action which the Parent, such Subsidiary or such ERISA
Affiliate proposes to take with respect thereto;
(m) Promptly upon the same becoming available, and
in any event by the date such amendment is adopted, a copy of
any Pension Plan amendment that the Parent, any of its
Subsidiaries or any ERISA Affiliate proposes to adopt which
would require the posting of security under Section
401(a)(29) of the Code, together with a certificate of the
Responsible Officer setting forth the reasons for the
adoption of such amendment and the action which the Parent,
such Subsidiary or such ERISA Affiliate proposes to take with
respect thereto;
(n) As soon as possible and in any event by the
10th day after any required installment or other payment
under Section 412 of the Code owed to a Pension Plan by the
Parent, any of its Subsidiaries or any ERISA Affiliate shall
have become due and owing and remain unpaid a copy of the
notice of failure to make required contributions provided to
the PBGC by the Parent, any of its Subsidiaries or any ERISA
Affiliate under Section 412(n) of the Code, together with a
certificate of the Responsible Officer setting forth the
action which the Parent, such Subsidiary or such ERISA
Affiliate proposes to take with respect thereto;
(o) If the termination of any Pension Plan would
result in the imposition of any tax under Section 4980 of the
Code, then as soon as possible, but in no event less than 60
days before the due date of the tax, a certificate of the
Responsible Officer setting forth the estimated amount of the
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 in-
formation and reports regarding the business, condition (fi-
nancial 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 re-
quest.
H. Inspection
At all reasonable times, upon reasonable prior no-
tice, 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 thereofand 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 Subsidiaries to
maintain, in full force and effect, all copyrights, patents,
trademarks, trade names, franchises, licenses, permits, ap-
plications, reports, and other authorizations and rights, as
are necessary for theconduct from time to time of their busi-
nesses, 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 In-
debtedness, or permit any of its Subsidiaries so to do,
except any one or more of the following types of
Indebtedness: (a) Indebtedness under the Loan Documents, (b)
Indebtedness of the Subsidiaries of the Parent in an
aggregate principal amount not in excess of $25,000,000 at
any one time outstanding (i) in respect of capital leases,
(ii) secured by Liens on Property acquired by any such
Subsidiary after the date hereof provided that such Liens are
in existence on the date of such acquisition and were not
placed on such Property in contemplation of such acquisition,
and (iii) other purchase money Indebtedness of the
Subsidiaries of the Parent, provided that, in each case under
this clause (b), the Lien securing such Indebtedness is per-
mitted 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 Indebtedness 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 in-
debtedness 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 acquired by
the Parent or any of its Subsidiaries, or permit any of its
Subsidiaries so to do, except any one or more of the
following types of Liens: (a) Liens in connection with work-
ers' compensation, unemployment insurance or other social
security obligations (which phrase shall not be construed to
refer to ERISA or the minimum funding obligations under
Section 412 of the Code), (b) Liens to secure the performance
of bids, tenders, letters of credit, contracts (other than
contracts for the payment of Indebtedness), leases, statutory
obligations, surety, customs, appeal, performance and payment
bonds and other obligations of like nature, in each such case
arising in the ordinary course of business, (c) mechanics',
workmen's, carriers', warehousemen's, materialmen's,
landlords', or other like Liens arising in the ordinary
course of business with respect to obligations which are not
due or which are being contested in good faith and by ap-
propriate 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 imper-
fections and restrictions, zoning ordinances and other
similar encumbrances affecting Property which in the
aggregate do not materially impair its use for the operation
of the business of the Parent or such Subsidiary, (f) Liens
set forth on Schedule 8.3 and any renewal thereof, (g) Liens
under capital leases and Liens on Property (including, in the
event such Property constitutes capital stock of a newly
acquired Subsidiary of the Parent, Liens on the Property of
such Subsidiary) hereafter acquired and either existing on
such Property when acquired, or created contemporaneously
with such acquisition, to secure the payment or financing of
the purchase price thereof, provided that such Liens attach
only to the Property so purchased or acquired and provided
further that the Indebtedness secured by such Liens is
permitted by Section 8.1(b), (h) Liens created under the Loan
Documents, (i) statutory Liens in favor of lessors arising in
connection with Property leased to the Parent or any of its
Subsidiaries, (j) Liens of attachments, judgments or awards
against the Parent or any of its Subsidiaries with respect to
which an appeal or proceeding for review shall be pending or
a stay of execution shall have been obtained, or which are
otherwise being contested in good faith and by appropriate
proceedings diligently conducted, and in respect of which
adequate reserves shall have been established in accordance
with GAAP on the books of the Parent or such Subsidiary, and
(k) Intercompany Liens.
D. Dispositions
Make any Disposition or permit any of its Subsid-
iaries 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.
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 Subsidiaries
(other than a Borrower) may consolidate with or merge with
any of its other Subsidiaries (other than a Borrower), or
convey or transfer all or substantially all of its Property
to any of its other wholly-owned Subsidiaries (other than a
Borrower), provided that (x) immediately before and after
giving effect thereto no Default or Event of Default shall or
would exist and (y) the Administrative Agent shall have
received 15 Business Days' prior written notice thereof, and
(ii) any of its wholly-owned Subsidiaries may
consolidate with or merge with any Subsidiary Borrower, or
convey or transfer all or substantially all of its Property
to any Subsidiary Borrower, provided that (w) immediately
before and after giving effect thereto no Default or Event of
Default shall or would exist, (x) such Subsidiary Borrower
shall be the survivor of such consolidation or merger, (y)
the Administrative Agent shall have received 15 Business
Days' prior written notice of such consolidation, merger,
conveyance or transfer, and (z) the Administrative Agent
shall have received such documents, opinions and certificates
as the Administrative Agent shall have reasonably requested
in connection therewith.
F. Acquisitions
Make any Acquisition, or permit any of its Sub-
sidiaries 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 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 con-
tribution or otherwise, in any Person (all of which are some-
times referred to herein as "Investments"), or permit any of
its Subsidiaries so to do, except any one or more of the fol-
lowing Investments: (a) Investments in short-term direct ob-
ligations of the United States of America (and not the agen-
cies 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 agen-
cies or instrumentalities thereof), (c) Investments in short-
term certificates of deposit, in Dollars, of any Lender or
any other depository institution chartered under the laws of
the United States of America or any State thereof the
deposits of which are insured by the Federal Deposit
Insurance Corporation and which has capital and undivided
surplus of not less than $500,000,000, (d) Investments in
commercial paper having a commercial paper rating of not
lower than (i) A-1 by S&P, or (ii) P-1 by Moody's, (e)
Investments existing on the date hereof and set forth on
Schedule 8.7, (f) Investments in Intercompany Debt, (g)
Investments in the Parent or any Subsidiary or any Person who
immediately thereafter becomes a Subsidiary, (h) Investments
from the net cash proceeds received from the issuance of
additional shares of the Parent's capital stock, (i)
Acquisitions permitted by Section 8.6, (j) Investments in
short-term certificates of deposit or similar instruments, in
any Currency other than Dollars, of any bank which has
capital and undivided surplus of not less 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 Subsidiaries
Permit, cause or suffer to exist, any of its Sub-
sidiaries to enter into or agree, or otherwise be or become
subject, to any agreement, contract or other arrangement
(other than this Agreement) with any Person pursuant to the
terms of which (a) such Subsidiary is or would be prohibited
from declaring or paying any cash dividends on any class of
its stock owned directly or indirectly by the Parent or any
of its other Subsidiaries or from making any other dis-
tribution on account of any class of any such stock (herein
referred to as "Upstream Dividends"), or (b) the declaration
or payment of Upstream Dividends by a Subsidiary of the
Parent to the Parent or another Subsidiary of the Parent, on
an annual or cumulative basis, is or would be otherwise
limited or restricted.
J. Transactions with Affiliates
Become, or permit any of its Subsidiaries to be-
come, a party to any material transaction with any Affiliate
of the Parent on a basis less favorable in any material re-
spect 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 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 pay-
ment or purchase of any Indebtedness, (A) shall become or
shall be declared to be due and payable prior to the
expressed maturity thereof (unless such acceleration shall
have thereafter been unconditionally rescinded or annulled
prior to the time that the Aggregate Commitment has been
terminated or the Loans have become or been declared due and
payable), or (B) shall not be paid when due or within any
grace period for the payment or purchase thereof, or (ii) any
holder of any such obligations shall have the right to
declare the Indebtedness evidenced thereby due and payable or
to require the purchase of the Indebtedness evidenced thereby
prior to its stated maturity (unless such right shall
thereafter have been unconditionally waived prior to the time
such holder shall have declared such Indebtedness due and
payable or required the purchase of such Indebtedness); or
(g) The Parent or any of its Subsidiaries shall
(i) suspend or discontinue its business (except as may oth-
erwise be expressly permitted herein), or (ii) make an as-
signment 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 evi-
denced), or (vii) file any petition or answer seeking for it-
self any reorganization, arrangement, composition, readjust-
ment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any
jurisdiction, or (viii) petition or apply to any tribunal for
any receiver, custodian or any trustee for any substantial
part of its Property, or (ix) be the subject of any such pro-
ceeding filed against it which remains undismissed for a pe-
riod of 45 days, or (x) file any answer admitting or not con-
testing the material allegations of any such petition filed
against it, or of any order, judgment or decree approving
such petition in any such proceeding, or (xi) seek, approve,
consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator,
or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent and such
order remains unstayed and in effect for 45 days; or
(h) An order for relief is entered under the bank-
ruptcy or insolvency laws of any jurisdiction and continues
unstayed and in effect for a period of 60 days (i) adjudging
the Parent or any of its Subsidiaries as bankrupt or insol-
vent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or
composition of, or in respect of the Parent or any of its
Subsidiaries under the bankruptcy or insolvency laws of any
jurisdiction, or (iii) appointing a receiver, liquidator, as-
signee, 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) or-
dering 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 Par-
ent 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, ap-
proval or agreement of the Parent or any of its Subsidiaries
to own or operate any Operating Entity owned or operated by
the Parent or such Subsidiary is not renewed, or is suspended
or revoked, and the non-renewal, suspension or revocation is
irrevocable and not subject to appeal or challenge and would
have a Material Adverse effect; or
(l) (i) any Termination Event shall occur with re-
spect 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 involv-
ing 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 Mate-
rial Adverse effect; (viii) a contribution required to be
made to a Foreign Pension Plan has not been timely made which
would have a Material Adverse effect; or (ix) the Parent or
any of its Subsidiaries has incurred or is likely to incur
liabilities pursuant to one or more Foreign Pension Plans
which would have a Material Adverse effect; or
(m) (i) Any Loan Document shall cease to be in
full force and effect, or an "Event of Default" shall have
occurred under, and as such term is defined therein, or (ii)
the failure of any Credit Party to observe or perform any ob-
ligation 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 Commit-
ment, the Individual Currency Commitments and the Letter of
Credit Commitment shall immediately and automatically termi-
nate 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 be-
come due and payable, and the Parent and the applicable
Letter of Credit Applicants shall forthwith deposit an amount
equal to the Letter of Credit Exposure in a cash collateral
account with and under the exclusive control of the Adminis-
trative 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 con-
sent of the Required Lenders, the Administrative Agent may,
and upon the direction of the Required Lenders shall, by no-
tice to the Parent (on behalf of all Borrowers), declare the
Aggregate Commitments, the Swing Line Commitment, the Indi-
vidual Currency Commitments and the Letter of Credit Commit-
ment to be terminated forthwith, whereupon the Aggregate Com-
mitments, the Swing Line Commitment, the Individual Currency
Commitments and the Letter of Credit Commitment shall im-
mediately terminate, and (ii) with the consent of the
Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice of default
to the Parent (on behalf of all Borrowers), declare the
Loans, all accrued and unpaid interest thereon, any
reimbursement obligations owing or contingently owing in
respect of all outstanding Letters of Credit and all other
amounts owing under the Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become due
and payable, and the Parent and the applicable Letter of
Credit Applicants shall forthwith deposit an amount equal to
the Letter of Credit Exposure in a cash collateral account
with and under the exclusive control of the Administrative
Agent, and the Administrative Agent may, and upon the
direction of the Required Lenders shall, exercise any and all
remedies and other rights provided pursuant to the Loan
Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
In the event that the Aggregate Commitments, the
Swing Line Commitment, the Individual Currency Commitments
and the Letter of Credit Commitment shall have been termi-
nated 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 ad-
vanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or the
Credit Parties; (ii) second, to the payment of any expenses
due the Administrative Agent from the Credit Parties, (iii)
third, to reimburse the Administrative Agent and the Lenders
for any expenses (to the extent not paid pursuant to clause
(ii) above due from the Parent and the Borrowers pursuant to
the provisions of Section 11.5; (iv) fourth, to the payment
of accrued Facility Fees, Letter of Credit Commissions and
all other fees, expenses and amounts due under or in respect
of the Loan Documents (other than principal and interest on
the Loans and reimbursement obligations and interest thereon
with respect to the Letters of Credit); (v) fifth, to the
payment of interest due on the Loans and due on reimbursement
obligations with respect to the Letters of Credit; (vi)
sixth, to the payment of principal outstanding on the Loans
and reimbursement obligations with respect to the Letters of
Credit; and (vii) seventh, to the payment of any other
amounts owing to the Administrative Agent and the Lenders un-
der the Loan Documents.
X. THE ADMINISTRATIVE AGENT
A. Appointment
Each Lender hereby irrevocably designates and ap-
points BNY as the Administrative Agent of such Lender under
the Loan Documents and each such Lender hereby irrevocably
authorizes BNY, as the Administrative Agent for such Lender,
to take such action on its behalf under the provisions of the
Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent
by the terms of the Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement or
any Loan Document, the Administrative Agent shall not have
any duties or responsibilities other than those expressly set
forth herein or therein, or any fiduciary relationship with
the Issuing Bank, the Swing Line Lender or any Lender, and no
implied covenants, functions, responsibilities, duties, obli-
gations 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 ad-
vice of counsel concerning all matters pertaining to such du-
ties.
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 con-
tained 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 con-
nection 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 as-
certain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, the
Loan Documents, or to inspect the properties, books or
records of the Credit Parties. The Administrative Agent
shall not be under any liability or responsibility what-
soever, as Administrative Agent, to the Credit Parties or any
other Person as a consequence of any failure or delay in per-
formance, or any breach, by any Lender of any of its obliga-
tions 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, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to
any of the Credit Parties), independent accountants and other
experts selected by the Administrative Agent. The Ad-
ministrative Agent may treat each Lender, or the Person
designated in the last notice filed with it under this Sec-
tion, as the holder of all of the interests of such Lender in
its Loans until written notice of transfer, signed by such
Lender (or the Person designated in the last notice filed
with the Administrative Agent) and by the Person designated
in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been
filed with the Administrative Agent. The Administrative
Agent shall not be under any duty to examine or pass upon the
validity, effectiveness, enforceability, perfection or
genuineness of any of the Loan Documents or any instrument,
document or communication furnished pursuant hereto or
thereto or in connection herewith or therewith, and the
Administrative Agent shall be entitled to assume that the
same are valid, effective and genuine, have been 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 Adminis-
trative 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 Adminis-
trative Agent shall promptly give notice thereof to the Issu-
ing Bank, the Swing Line Lender and the Lenders. The Adminis-
trative Agent shall take such action with respect to such De-
fault 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
The Issuing Bank, the Swing Line Lender and each
Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employ-
ees, 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 repre-
sents to the Administrative Agent that it has, independently
and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as
it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property,
financial and other condition and creditworthiness of the
Credit Parties and made its own decision to enter into this
Agreement. The Issuing Bank, the Swing Line Lender and each
Lender also represents that it will, independently and
without reliance upon the Administrative Agent, the Issuing
Bank, the Swing Line Lender or any other Lender, and based on
such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action
under the Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business,
operations, Property, financial and other condition and
creditworthiness of the Credit Parties. Except for notices,
reports and other documents expressly required to be
furnished to the Issuing Bank, the Swing Line Lender and the
Lenders by the Administrative Agent under the Loan Documents,
the Administrative Agent shall not have any duty or
responsibility to provide the Issuing Bank, the Swing Line
Lender or any Lender with any credit or other information
concerning the business, operations, Property, financial and
other condition or creditworthiness of the Credit Parties
which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
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 and (B) the denominator of which is
the Aggregate Credit Exposure, from and against any and all
liabilities, obligations, losses, damages, penalties, ac-
tions, 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 pur-
suant to the terms of the Loan Documents, that are subse-
quently 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 Ad-
ministrative Agent under or in connection with the foregoing;
provided, however, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from the
finally adjudicated gross negligence or willful misconduct of
the Administrative Agent. Without limitation of the fore-
going, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its pro rata share (calculated
as set forth in the first sentence of this Section) of any
unpaid costs and expenses (including reasonable fees and
expenses of counsel) payable by the Credit Parties under
Section 11.5, to the extent that the Administrative Agent has
not been reimbursed for such costs and expenses by the Credit
Parties. The failure of any Lender to reimburse the
Administrative Agent promptly upon demand for its pro rata
share (as so calculated) of any amount required to be paid by
the Lenders to the Administrative Agent as provided in this
Section shall not relieve any other Lender of its obligation
hereunder to reimburse the Administrative Agent for its pro
rata share (as so calculated) of such amount, but no Lender
shall be responsible for the failure of any other Lender to
reimburse the Administrative Agent for such other Lender's
pro rata share (as so calculated) of such amount. The agree-
ments 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
Administrative Agent hereunder. With respect to the Commit-
ment, the Swing Line Commitment, the Individual Currency
Commitment and the Letter of Credit Commitment of BNY and the
Loans made by BNY, and the Letters of Credit issued by BNY,
BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though
it were not the Issuing Bank, the Swing Line Lender or the
Administrative Agent, and the terms "Lender" and "Lenders"
shall in each case include BNY.
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 un-
der 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 organized under the laws of
the United States of America or any State thereof and having
a combined capital, surplus, and undivided profits of at
least $500,000,000 and, provided that no Default or Event of
Default shall exist, shall be reasonably satisfactory to the
Parent. Upon the acceptance of any appointment as 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 duties of the retiring Administrative Agent,
and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan
Documents shall be terminated. The Credit Parties, the
Issuing Bank, the Swing Line Lender and the Lenders shall
execute such documents as shall be necessary to effect such
appointment. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of the
Loan Documents shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
XI. OTHER PROVISIONS
A. Amendments and Waivers
(a) With the written consent of the Required Lend-
ers, the Administrative Agent, the Parent and the other ap-
propriate Credit Parties may, from time to time, enter into
written amendments, supplements or modifications of any of
the Loan Documents and, with the consent of the Required
Lenders, the Administrative Agent on behalf of the Issuing
Bank, the Swing Line Lender and the Lenders may execute and
deliver to any such parties a written instrument waiving or
granting a consent to a departure from, on such terms and
conditions as the Administrative Agent may specify in such
instrument, any of the requirements of any of the Loan
Documents or any Default or Event of Default and its con-
sequences; 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) re-
lease 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 con-
tained herein, the Parent may at any time or from time to
time, at the Parent's sole cost and expense, request any
Lender to increase its Commitment, or any other bank,
insurance company, pension fund, mutual fund or other
financial institution (each a "Proposed Lender"; each such
Proposed Lender to be reasonably satisfactory to the Swing
Line Lender and the Issuing Bank) to provide a new
Commitment, by submitting a supplement to this Agreement to
the Administrative Agent, the Issuing Bank, the Swing Line
Lender and the Credit Parties. If such supplement is in all
respects satisfactory to it, the Administrative Agent, the
Issuing Bank, the Swing Line Lender, the Parent, each other
Credit Party and such Lender or Proposed Lender, as the case
may be, shall each execute a copy thereof and deliver a copy
thereof to the Administrative Agent, the Parent and such
Lender or 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 Commit-
ments 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 Com-
mitments set forth in Exhibit A-2 shall be adjusted accord-
ingly 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 con-
tained 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 fu-
ture 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 De-
fault, or impair any right consequent thereon. The Loan
Documents may not be amended orally or by any course of
conduct.
(d) If any assignment made pursuant to subsection
(b)(y) above shall be made to any Proposed Lender and such
Proposed Lender is not a U.S. Person, such Proposed Lender
shall furnish such certificates, documents or other evidence
to the Parent, the Borrowers, the Lenders and the Administra-
tive 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 ap-
plicable Borrower Addendum;
(ii) if to any Lender, at its Address for No-
tices set forth on Exhibit R;
(iii) if to the Administrative Agent, at its Ad-
dress 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 No-
tices 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 Bor-
rower 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 effec-
tive 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 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 reasonable fees and disbursements of
counsel, incurred in connection with (A) any Default or Event
of Default and any enforcement or collection proceedings
resulting therefrom or in connection with the negotiation of
any restructuring or "work-out" (whether consummated or not)
of the obligations of the Parent and the Borrowers under the
Loan Documents and (B) the enforcement of this Section, (iii)
to pay, indemnify, and hold each Lender, the Swing Line
Lender, the Issuing Bank and the Administrative Agent harm-
less 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 pay-
able in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Loan Documents and any
such other documents, and (iv) to pay, indemnify and hold
each Lender, the Swing Line Lender, the Issuing Bank and the
Administrative Agent and each of their respective officers,
directors and employees harmless from and against any and all
other liabilities, obligations, claims, losses, damages, pen-
alties, actions, judgments, suits, costs, expenses or dis-
bursements 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 in-
demnified liabilities to the Administrative Agent, the Swing
Line Lender, the Issuing Bank or any Lender arising from the
finally adjudicated gross negligence or willful misconduct of
the Administrative Agent, the Swing Line Lender, the Issuing
Bank or such Lender or claims between one indemnified party
and another indemnified party. The agreements in this
Section shall survive the termination of the Aggregate Com-
mitments, 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 Indi-
vidual 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 Cur-
rency Loan and each Letter of Credit designated in an
Alternate Currency shall remain in effect until the same is
recalculated by the Administrative Agent as provided above
and notice of such recalculation is received by the Parent,
it being understood that until such notice is received, the
Dollar Equivalent shall be that Dollar Equivalent. The
Administrative Agent shall promptly notify the Parent, the
Issuing Bank, the Swing Line Lender and the Lenders of each
such determination of the Dollar Equivalent for each Al-
ternate Currency 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
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 consent of the Parent, the Swing Line Lender
and the Issuing Bank (which consents shall not be
unreasonably withheld), to sell, assign, transfer or
negotiate all or any part of such Lender's rights and
obligations under the Loan Documents to any other bank,
insurance company, pension fund, mutual fund or other finan-
cial 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 Ad-
ministrative 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 As-
signment and Acceptance Agreement. Upon such execution, de-
livery, acceptance and recording by the Administrative Agent,
from and after the effective date specified in such As-
signment and Acceptance Agreement, the assignee thereunder
shall be a party hereto and, to the extent provided in such
Assignment and Acceptance Agreement, the assignor Lender
thereunder shall be released from its obligations under the
Loan Documents. Upon any such sale, assignment or other
transfer, the Commitments and the Commitment Percentages set
forth in Exhibit A-1, and the Individual Currency Commitments
set forth in Exhibit A-2, shall be adjusted accordingly by
the Administrative Agent and a new Exhibit A-1 and a new
Exhibit A-2 shall be distributed by the Administrative Agent
to the Parent (on behalf of all Borrowers) and each Lender.
(c) Each Lender may grant participations in all or
any part of its rights and obligations under the Loan
Documents to one or more of its affiliates, to one or more of
the other Lenders (or to affiliates of such other Lenders) or
to one or more other banks, insurance companies, pension
funds, mutual funds or other financial institutions, provided
that (i) such Lender's obligations under the Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties to the Loan Documents for
the performance of such obligations, (iii) the Borrowers, the
Administrative Agent, the Swing Line Lender, the Issuing Bank
and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents, (iv) no sub-
participations shall be permitted and (v) the voting rights
of any holder of any participation shall be limited to deci-
sions that in accordance with Section 11.1 require the
consent of all of the Lenders. The Parent and the Borrowers
acknowledge and agree that any such participant shall for
purposes of Sections 2.13, 2.14, 2.15, 2.22, 11.5 and 11.10,
be deemed to be a "Lender"; provided, however, neither the
Parent nor the Borrowers shall, at any time, be obligated to
pay any participant in any interest of any Lender hereunder
any sum in excess of the sum which the Parent and the
Borrowers would have been obligated to pay to such Lender in
respect of such interest had such Lender not sold such par-
ticipation.
(d) If any (i) assignment is made pursuant to sub-
section (b) above or (ii) any participation is granted pursu-
ant to subsection (c) above, shall be made to any Person that
is not a U.S. Person, such Person shall furnish such certifi-
cates, documents or other evidence to the Parent, the Borrow-
ers 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 Par-
ent, the Borrowers, the Administrative Agent, the Swing Line
Lender, the Issuing Bank and such Lender, be relieved of any
of its obligations under the Loan Documents as a result of
any sale, assignment, transfer or negotiation of, or granting
of participations in, all or any part of its rights and
obligations under the Loan Documents, except that a Lender
shall be relieved of its obligations under the Loan Documents
to the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its obligations under the
Loan Documents pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary con-
tained in this Section, any Lender may at any time or from
time to time assign all or any portion of its rights under
the Loan Documents to a Federal Reserve Bank, provided that
any such assignment shall not release such assignor from its
obligations thereunder.
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 account for more than one counterpart signed by
the party to be charged. An executed counterpart of any Loan
Document and of any amendment, modification, consent or
waiver thereto or thereof transmitted by fax shall be deemed
to be an originally executed counterpart. A copy of any Loan
Document signed by all the parties thereto shall be deposited
with the Parent (on behalf of all Borrowers) and the Adminis-
trative 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 ex-
tent 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 pro-
ceeds 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 oc-
currence 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 Borrow-
ers, any such notice being expressly waived by the Parent and
the Borrowers to the extent not prohibited by applicable law,
to set-off and apply against any indebtedness, whether
matured or unmatured, of the Parent or the Borrowers to such
Lender, any amount owing from such Lender to the Parent or
the Borrowers, at, or at any time after, the happening of any
of the above-mentioned events. To the extent not prohibited
by applicable law, the aforesaid right of set-off may be
exercised by such Lender against the Parent and the Borrowers
or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver,
or execution, judgment or attachment creditor of the Parent
or the Borrowers, or against anyone else claiming through or
against the Parent or the Borrowers or such trustee in
bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or at-
tachment creditor, notwithstanding the fact that such right
of set-off shall not have been exercised by such Lender prior
to the making, filing or issuance, or service upon such
Lender of, or of notice of, any such petition, assignment for
the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to
notify the Parent, the Borrowers and the Administrative Agent
after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not
affect the validity of such set-off and application. With
respect to each Borrower, the right of set-off provided for
in this Section 11.9(b) shall be limited to the obligations
of such Borrower with respect to Loans made to it and to its
Proportionate Share of other costs, expenses and other
amounts.
J. Indemnity
Each of the Borrowers to the extent of its Propor-
tionate Share and the Parent severally agree to indemnify and
hold harmless the Administrative Agent, the Swing Line
Lender, the Issuing Bank and each Lender and their respective
affiliates, directors, officers, employees, attorneys and
agents (each an "Indemnified Person") with respect to each
Indemnified Person's status under the Loan Documents from and
against any loss, cost, liability, damage or expense
(including the reasonable fees and disbursements of counsel
of such Indemnified Person, including all local counsel hired
by any such counsel) incurred by such Indemnified Person in
investigating, preparing for, defending against, or providing
evidence, producing documents or taking any other action in
respect of, any commenced or threatened litigation,
administrative proceeding or investigation under any federal
securities law or any other statute of any jurisdiction, or
any regulation, or at common law or otherwise, which is al-
leged to arise out of or is based upon (i) any untrue state-
ment or alleged untrue statement of any material fact by the
Parent or the Borrowers in any document or schedule executed
or filed with any Governmental Authority by or on behalf of
the Parent or the Borrowers; (ii) any omission or alleged
omission to state any material fact required to be stated in
such document or schedule, or necessary to make the
statements made therein, in light of the circumstances under
which made, not misleading; (iii) any acts, practices or
omissions or alleged acts, practices or omissions of the
Parent or the Borrowers or their respective agents relating
to the use of the proceeds of any or all borrowings made by
the Borrowers which are alleged to be in violation of Section
2.18, or in violation of any federal securities law or of any
otherstatute, regulation or other law of any jurisdiction ap-
plicable thereto; or (iv) any acquisition or proposed
acquisition by the Parent or the Borrowers of all or a por-
tion 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 termina-
tion of the Loan Documents, the expiration of the Commit-
ments, the Letter of Credit Commitment, the Swing Line
Commitment, the Individual Currency Commitments, and the pay-
ment 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
unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions hereof or thereof
shall not be affected or impaired thereby, and any in-
validity, 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 Adminis-
trative 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 matter thereof and supersede all prior agreements
and understandings among the Parent, the Borrowers, the
Administrative Agent, the Swing Line Lender, the Issuing Bank
and the Lenders with respect to the subject matter thereof.
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
Currency, except to the extent that, on the Business Day im-
mediately 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 ac-
cordance with normal banking procedures, purchase the Obliga-
tion 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 proce-
dures in the relevant jurisdiction, the Obligation Currency
could be purchased with the Judgment Currency as of the day
immediately preceding the day on which the judgment is given
(such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
(b) If the amount of Obligation Currency purchased
pursuant to the last sentence of subsection (a) above is less
than the sum originally due in the Obligation Currency, the
applicable Credit Party covenants and agrees to indemnify the
applicable recipient against such loss, and if the Obligation
Currency so purchased exceeds the sum originally due to such
recipient, such recipient agrees to remit to the applicable
Credit Party such excess.
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 informa-
tion is not otherwise in the public domain, shall not be dis-
closed 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 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
permitted by law or limit the right of the Administrative
Agent, the Swing Line Lender, the Issuing Bank or any Lender
to bring proceedings against any Credit Party in the courts
of any jurisdiction or jurisdictions in which such Credit
Party may be served.
S. WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE SWING LINE
LENDER, THE ISSUING BANK, THE LENDERS AND EACH CREDIT PARTY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
T. International Banking Facilities
The Parent and the Borrowers acknowledge that some
or all of the Lenders may, in connection with the Loan Docu-
ments, 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 bor-
rowings hereunder from an International banking facility will
be used solely to finance its operations outside the United
States, or that of its foreign affiliates.
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: ________________________
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: ________________________
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
Administrative Agent
By: ________________________
Name: ________________________
Title: ________________________
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: ________________________
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: ________________________
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: ________________________
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: ________________________