{"id":40859,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1-2-billion-second-amended-and-restated-credit-agreement-the.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1-2-billion-second-amended-and-restated-credit-agreement-the","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/1-2-billion-second-amended-and-restated-credit-agreement-the.html","title":{"rendered":"$1.2 Billion Second Amended and Restated Credit Agreement – The Gap Inc., Citibank N.A., Bank of America N.A., HSBC Bank USA, Morgan Guaranty Trust Co. of New York and Salomon Smith Barney Inc."},"content":{"rendered":" \n U.S. $1,200,000,000\n\n SECOND AMENDED AND RESTATED CREDIT AGREEMENT\n\n Dated as of June 27, 2000\n\n among\n\n THE GAP, INC.\n\n as Borrower,\n -----------\n\n THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,\n\n as LC Subsidiaries,\n ------------------\n\n THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN\n\n as Lenders,\n ----------\n\n CITIBANK, N.A.,\n\n as Issuing Bank,\n ---------------\n\n BANK OF AMERICA, N.A.,\n\n HSBC BANK USA,\n\n and\n\n MORGAN GUARANTY TRUST COMPANY OF NEW YORK,\n\n as Senior Managing Agents,\n -------------------------\n\n and\n\n SALOMON SMITH BARNEY INC.\n\n as Arranger,\n -----------\n\n and\n\n CITICORP USA INC.\n\n as Agent\n --------\n for the Issuing Bank and the\n Lenders from time to time party hereto\n\n \n\n SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 27, 2000 \n(this \"Agreement\"), among The Gap, Inc., a Delaware corporation (the\n --------- \n\"Borrower\"), the LC Subsidiaries (as hereinafter defined), the banks and\n --------\nfinancial institutions (the \"Lenders\") listed on the signature pages hereof,\n -------\nCitibank, N.A. (\"Citibank\"), as issuing bank (the \"Issuing Bank\"), Bank of\n -------- ------------\nAmerica, N.A. (\"B of A\"), HSBC Bank USA (\"HSBC\") and Morgan Guaranty Trust\n ------ ----\nCompany of New York (\"Morgan Guaranty\"), and together with B of A and HSBC, the\n --------------- \n\"Senior Managing Agents\"), as senior managing agents, Salomon Smith Barney Inc.\n ----------------------\n(\"SSB\"), as arranger (the \"Arranger\"), and Citicorp USA Inc. (\"CUSA\"), as agent\n --- -------- ----\n(the \"Agent\") for the Lenders and the Issuing Bank hereunder.\n ----- \n\nPRELIMINARY STATEMENTS:\n\n(1) The Borrower, certain of its subsidiaries, certain banks and financial\n institutions, the Issuing Bank, and the Agent entered into an Amended and\n Restated Credit Agreement dated as of June 29, 1999 (the \"Original\n --------\n Agreement\").\n --------- \n\n(2) The Borrower, the Lenders, Citibank, as Issuing Bank, the Senior Managing\n Agents, the Arranger and the Agent desire to amend and restate the Original\n Agreement as set forth below.\n\nNOW THEREFORE, the Borrower, the LC Subsidiaries, the Lenders, the Issuing Bank,\nthe Senior Managing Agents, the Arranger and the Agent agree to amend and\nrestate the Original Agreement in its entirety to read as follows:\n\n ARTICLE I\n DEFINITIONS AND ACCOUNTING TERMS\n\nSECTION 1.01 Certain Defined Terms.\n------------ ----------------------\n\n As used in this Agreement, the following terms shall have the following\nmeanings (such meanings to be equally applicable to both the singular and plural\nforms of the terms defined):\n\n \"A Advance\" means an advance by an A Lender to the Borrower as part of\n --------- \n an A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate\n Advance, each of which shall be a \"Type\" of A Advance.\n ---- \n\n \"A Borrowing\" means a borrowing consisting of simultaneous A Advances\n ----------- \n of the same Type made by each of the A Lenders pursuant to Section 2.01.\n\n \"A Commitment\" means, as to each A Lender, the amount set forth\n ------------ \n opposite such A Lender's name on Schedule I-A hereto under the caption A\n -\n Commitment or, if such A Lender has entered into one or more Assignment and\n ---------- \n Acceptances, the amount set forth for such A Lender with respect thereto in\n the Register maintained by the Agent pursuant to Section 10.07 hereof, in\n each case as such amount may be reduced or increased pursuant to Section\n 2.05.\n\n \"A Commitment Increase\" has the meaning specified in Section 2.05(b).\n --------------------- \n\n \"A Lender\" means any Lender having an A Commitment or to which A\n -------- \n Advances are owed.\n\n \"Advance\" means an A Advance or a B Advance, and \"Advances\" means the\n ------- --------- \n A Advances and the B Advances.\n\n \"Affiliate\" means, as to any Person, any other Person that, directly\n --------- \n or indirectly, controls, is controlled by, or is under common control with,\n such Person.\n\n \n \"Alternative Currency\" means any lawful currency other than Dollars\n -------------------- \n which is freely transferable and convertible into Dollars and which the\n Issuing Bank can obtain in the ordinary course of its business.\n\n \"Applicable Lending Office\" means, with respect to each Lender, such\n ------------------------- \n Lender's Domestic Lending Office in the case of a Base Rate Advance, and\n such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate\n Advance and, in the case of a B Advance, the office of such Lender notified\n by such Lender to the Agent as its Applicable Lending Office with respect\n to such B Advance.\n\n \"Assignment and Acceptance\" means an assignment and acceptance entered\n ------------------------- \n into by a Lender and an Eligible Assignee, and accepted by the Agent, in\n substantially the form of Exhibit B hereto.\n\n \"B Advance\" means an advance by an A Lender to the Borrower as part of\n --------- \n a B Borrowing resulting from the auction bidding procedure described in\n Section 2.03.\n\n \"B Borrowing\" means a borrowing consisting of simultaneous B Advances\n ----------- \n from each of the A Lenders whose offer to make one or more B Advances as\n part of such borrowing has been accepted by the Borrower under the auction\n bidding procedure described in Section 2.03.\n\n \"B Reduction\" has the meaning specified in Section 2.01.\n ----------- \n\n \"Base Rate\" means, for any period, a fluctuating interest rate per\n --------- \n annum as shall be in effect from time to time which rate per annum shall at\n all times be equal to the highest of:\n\n (a) the rate of interest announced publicly by Citibank in New\n York, New York, from time to time, as Citibank's base rate;\n\n (b) 1\/2% per annum above the latest three-week moving average of\n secondary market morning offering rates in the United States for\n three-month certificates of deposit of major United States money\n market banks, such three-week moving average being determined weekly\n on each Monday (or, if any such date is not a Business Day, on the\n next succeeding Business Day) for the three-week period ending on the\n previous Friday by the Agent on the basis of such rates reported by\n certificate of deposit dealers to and published by the Federal Reserve\n Bank of New York or, if such publication shall be suspended or\n terminated, on the basis of quotations for such rates received by the\n Agent from three New York certificate of deposit dealers of recognized\n standing selected by the Agent, in either case adjusted to the nearest\n 1\/4 of one percent or, if there is no nearest 1\/4 of one percent, to\n the next higher 1\/4 of one percent; and\n\n (c) 1\/2% per annum above the Federal Funds Rate.\n\n \"Base Rate Advance\" means an A Advance which bears interest as\n ----------------- \n provided in Section 2.07(a).\n\n \"Borrowing\" means an A Borrowing or a B Borrowing.\n --------- \n\n \"Business Day\" means a day of the year on which banks are not required\n ------------ \n or authorized to close in New York City or San Francisco, California and a\n day on which wire transfers may be \n\n \n effectuated among member banks of the Federal Reserve System through use of\n the fedwire funds transfer system and (i) if the applicable Business Day\n relates to any Eurodollar Rate Advances, a day on which dealings are\n carried on in the London interbank market and (ii) if the applicable\n Business Day relates to any Letter of Credit denominated in an Alternative\n Currency, a day on which commercial banks are open for business in the\n country of issue of such Alternative Currency and on which dealings in such\n Alternative Currency are carried on by such commercial banks in such\n country of issue (if such Alternative Currency is other than the Euro) or\n if such Alternative Currency is the Euro, a day on which the Trans-European\n Automated Real-Time Gross Settlement Express Transfer (TARGET) System is in\n operation.\n\n \"Capital Lease\" of any Person means any lease of any property (whether\n ------------- \n real, personal or mixed) by such Person as lessee, which lease should, in\n accordance with generally accepted accounting principles, be required to be\n accounted for as a capital lease on the balance sheet of such Person.\n\n \"Cash Equivalent\" means (i) direct obligations issued by or\n --------------- \n unconditionally guaranteed by the United States government or issued by any\n agency thereof and supported by the full faith and credit of the United\n States government, in each case maturing within twelve months from the date\n of acquisition thereof, (ii) commercial paper maturing not more than 270\n days from the date of acquisition thereof issued by a United States\n corporation and, at the time of acquisition, having the highest ratings\n obtainable from both Standard & Poor's Ratings Services, a division of The\n McGraw-Hill Companies, Inc. and Moody's Investors Service, Inc., (iii)\n Dollar denominated investments in money market funds and (iv) certificates\n of deposit, banker's acceptances, and secured repurchase agreements, in\n each case maturing within one year from the date of acquisition, and issued\n by or entered into with any banking institution having a combined capital\n and surplus of not less than $500,000,000.\n\n \"CERCLA\" means the Comprehensive Environmental Response, Compensation,\n ------ \n and Liability Act of 1980, as amended (42 U.S.C. (S) 9601 et seq.), and any\n -- --- \n regulations promulgated thereunder.\n\n \"Change of Control\" means the occurrence, after the date of this\n ----------------- \n Agreement, of (i) any Person or two or more Persons acting in concert\n acquiring beneficial ownership (within the meaning of Rule 13d-3 of the\n Securities and Exchange Commission under the Securities Exchange Act of\n 1934, as amended), directly or indirectly, of securities of the Borrower\n (or other securities convertible into such securities) representing 50% or\n more of the combined voting power of all securities of the Borrower\n entitled to vote in the election of directors; or (ii) during any period of\n up to 24 consecutive months, commencing before or after the date of this\n Agreement, individuals who at the beginning of such 24-month period were\n directors of the Borrower ceasing for any reason to constitute a majority\n of the Board of Directors of the Borrower unless the Persons replacing such\n individuals were nominated by the Board of Directors of the Borrower; or\n (iii) any Person or two or more Persons acting in concert acquiring by\n contract or otherwise, or entering into a contract or arrangement which\n upon consummation will result in its or their acquisition of, control over\n securities of the Borrower (or other securities convertible into such\n securities) representing 50% or more of the combined voting power of all\n securities of the Borrower entitled to vote in the election of directors;\n provided, that, the Person or group of Persons referred to in clauses (i)\n -------- ---- \n and (iii) of this definition of Change of Control shall not include any\n Person listed on Schedule III hereto or any group of Persons in which one\n or more of the Persons listed on Schedule III are members.\n\n \n \"Consolidated\" and any derivative thereof each means, with reference\n ------------ \n to the accounts or financial reports of any Person, the consolidated\n accounts or financial reports of such Person and each Subsidiary of such\n Person determined in accordance with generally accepted accounting\n principles, including principles of consolidation, consistent with those\n applied in the preparation of the Consolidated financial statements of the\n Borrower referred to in Section 6.01(e).\n\n \"Convert\", \"Conversion\" and \"Converted\" each refers to a conversion of\n ------- ---------- --------- \n A Advances of one Type into A Advances of another Type pursuant to Section\n 2.09 or 2.10.\n\n \"Debt\" of any Person means, without duplication, (i) all indebtedness\n ---- \n of such Person for borrowed money or for the deferred purchase price\n (excluding any deferred purchase price that constitutes an account payable\n incurred in the ordinary course of business) of property or services, (ii)\n all obligations of such Person in connection with any agreement to\n purchase, redeem, exchange, convert or otherwise acquire for value any\n capital stock of such Person or to purchase, redeem or acquire for value\n any warrants, rights or options to acquire such capital stock, now or\n hereafter outstanding, (iii) all obligations of such Person evidenced by\n bonds, notes, debentures, convertible debentures or other similar\n instruments, (iv) all indebtedness created or arising under any conditional\n sale or other title retention agreement (other than under any such\n agreement which constitutes or creates an account payable incurred in the\n ordinary course of business) with respect to property acquired by such\n Person (even though the rights and remedies of the seller or lender under\n such agreement in the event of default, acceleration, or termination are\n limited to repossession or sale of such property), (v) all Capital Lease\n obligations of such Person, (vi) obligations under direct or indirect\n guaranties in respect of, and obligations (contingent or otherwise) to\n purchase or acquire, or otherwise to assure a creditor against loss in\n respect of, indebtedness or obligations of others of the kinds referred to\n in clauses (i) through (v) above, (vii) all Debt referred to in clause (i),\n (ii), (iii), (iv), (v) or (vi) above secured by (or for which the holder of\n such Debt has an existing right, contingent or otherwise, to be secured by)\n any lien, security interest or other charge or encumbrance upon or in\n property (including, without limitation, accounts and contract rights)\n owned by such Person, even though such Person has not assumed or become\n liable for the payment of such Debt and (viii) all mandatorily redeemable\n preferred stock of such Person, valued at the applicable redemption price,\n plus accrued and unpaid dividends payable in respect of such redeemable\n preferred stock.\n\n \"Default\" means an event which would constitute an Event of Default\n ------- \n but for the requirement that notice be given or time elapse, or both.\n\n \"Dollars\", \"dollars\" and the sign \"$\" each means lawful money of the\n ------- ------- - \n United States.\n\n \"Domestic Lending Office\" means, with respect to any Lender, the\n ----------------------- \n office of such Lender specified as its \"Domestic Lending Office\" opposite\n its name on Schedule I-B hereto or in the Assignment and Acceptance\n pursuant to which it became a Lender, or such other office of such Lender\n as such Lender may from time to time specify to the Borrower and the Agent.\n\n \"EBITDA\" means, for any period, Net Income plus, to the extent\n ------ ---- \n deducted in determining such Net Income, the sum of (a) Interest Expense,\n (b) income tax expense, (c) depreciation expense and (d) amortization\n expense, all determined on a Consolidated basis for the Borrower and its\n Subsidiaries in accordance with generally accepted accounting principles.\n\n \n \"Eligible Assignee\" means (i) a commercial bank organized under the\n ----------------- \n laws of the United States, or any State thereof, and having Total Assets in\n excess of $10,000,000,000; (ii) a commercial bank organized under the laws\n of any other country which is a member of the OECD or has concluded special\n lending arrangements with the International Monetary Fund associated with\n its General Arrangements to Borrow, or a political subdivision of any such\n country, and having Total Assets in excess of $10,000,000,000; provided,\n -------- \n that, such bank is acting through a branch or agency located in the United\n ---- \n States; (iii) the central bank of any country which is a member of the\n OECD; (iv) any Lender or Affiliate of a Lender; (v) a finance company,\n insurance company or other financial institution or fund (whether a\n corporation, partnership or other entity) which is engaged in making,\n purchasing or otherwise investing in commercial loans in the ordinary\n course of its business, and having Total Assets in excess of\n $10,000,000,000; and (vi) any other Person mutually acceptable to the\n Borrower and the Agent.\n\n \"Environmental Laws\" means any and all laws, statutes, ordinances,\n ------------------ \n rules, regulations, judgments, orders, decrees, permits, licenses, or other\n governmental restrictions or requirements relating to the environment or\n any Hazardous Substance.\n\n \"ERISA Affiliate\" means any trade or business (whether or not\n --------------- \n incorporated) which is a member of a controlled group of which the Borrower\n or any Subsidiary of the Borrower is a member or which is under common\n control with the Borrower or any Subsidiary of the Borrower within the\n meaning of Section 414 of the Internal Revenue Code of 1986, as amended\n from time to time, and the regulations promulgated and rulings issued\n thereunder.\n\n \"ERISA\" means the Employee Retirement Income Security Act of 1974, as\n ----- \n amended from time to time, and the regulations promulgated and rulings\n issued thereunder.\n\n \"Eurocurrency Liabilities\" has the meaning assigned to that term in\n ------------------------ \n Regulation D of the Board of Governors of the Federal Reserve System, as in\n effect from time to time.\n\n \"Eurodollar Lending Office\" means, with respect to any Lender, the\n ------------------------- \n office of such Lender specified as its \"Eurodollar Lending Office\" opposite\n its name on Schedule I-B hereto or in the Assignment and Acceptance\n pursuant to which it became a Lender (or, if no such office is specified,\n its Domestic Lending Office), or such other office of such Lender as such\n Lender may from time to time specify to the Borrower and the Agent.\n\n \"Eurodollar Rate\" means, for any Interest Period for each Eurodollar\n --------------- \n Rate Advance comprising part of the same A Borrowing, an interest rate per\n annum equal to the average (rounded upward to the nearest whole multiple of\n 1\/16 of 1% per annum) of the rates per annum at which deposits in Dollars\n are offered by the principal office of each of the Reference Banks in\n London, England, to prime banks in the London interbank market at 11:00\n A.M. (London time) two Business Days before the first day of such Interest\n Period in an amount substantially equal to such Reference Bank's Eurodollar\n Rate Advance comprising part of such A Borrowing and for a period equal to\n such Interest Period. The Eurodollar Rate for the Interest Period for each\n Eurodollar Rate Advance comprising part of the same A Borrowing shall be\n determined by the Agent on the basis of the applicable rates given to and\n received by the Agent from the Reference Banks two Business Days prior to\n the first day of such Interest Period, subject, however, to the provisions\n ------- ------- \n of Section 2.09.\n\n \n \"Eurodollar Rate Advance\" means an A Advance which bears interest as\n ----------------------- \n provided in Section 2.07(b).\n\n \"Eurodollar Rate Margin\" means at any date of determination 0.175% per\n ---------------------- \n annum at all times from and after the date hereof.\n\n \"Eurodollar Rate Reserve Percentage\" of any Lender for any Interest\n ---------------------------------- \n Period for any Eurodollar Rate Advance means the reserve percentage\n applicable during such Interest Period (or if more than one such percentage\n shall be so applicable, the daily average of such percentages for those\n days in such Interest Period during which any such percentage shall be so\n applicable) under regulations issued from time to time by the Board of\n Governors of the Federal Reserve System (or any successor) for determining\n the maximum reserve requirement (including, without limitation, any\n emergency, supplemental or other marginal reserve requirement) for such\n Lender with respect to liabilities or assets consisting of or including\n Eurocurrency Liabilities having a term equal to such Interest Period.\n\n \"Events of Default\" has the meaning specified in Section 8.01.\n ----------------- \n\n \"Federal Funds Rate\" means, for any period, a fluctuating interest\n ------------------ \n rate per annum equal for each day during such period to the weighted\n average of the rates on overnight Federal funds transactions with members\n of the Federal Reserve System arranged by Federal funds brokers, as\n published for such day (or, if such day is not a Business Day, for the next\n preceding Business Day) by the Federal Reserve Bank of New York, or, if\n such rate is not so published for any day which is a Business Day, the\n average of the quotations for such day on such transactions received by the\n Agent from three Federal funds brokers of recognized standing selected by\n it.\n\n \"Fiscal Quarter\" means any quarter in any Fiscal Year, the duration of\n -------------- \n such quarter being defined in accordance with generally accepted accounting\n principles consistent with those applied in the preparation of the\n Borrower's financial statements referred to in Section 6.01(e).\n\n \"Fiscal Year\" means a fiscal year of the Borrower and its\n ----------- \n Subsidiaries.\n\n \"Five-Year Credit Agreement\" means the Amended and Restated Credit\n -------------------------- \n Agreement dated as of the date hereof among the Borrower, the financial\n institutions party thereto as lenders, and CUSA, as agent for such lenders,\n as the same may be amended, supplemented or otherwise modified from time to\n time.\n\n \"Hazardous Substance\" means (i) any hazardous substance or toxic\n ------------------- \n substance as such terms are presently defined or used in (S) 101(14) of\n CERCLA (42 U.S.C. (S) 9601(14)), in 33 U.S.C. (S) 1251 et.seq. (Clean Water\n -- --- \n Act), or 15 U.S.C. (S) 2601 et.seq. (Toxic Substances Control Act) and (ii)\n -- --- \n as of any date of determination, any additional substances or materials\n which are hereafter incorporated in or added to the definition of\n \"hazardous substance\" or \"toxic substance\" for purposes of CERCLA or any\n other applicable law.\n\n \"Interest Expense\" of any Person for any period means the aggregate\n ---------------- \n amount of interest or fees (other than agency fees payable to the Agent, as\n such) paid, accrued or scheduled to be paid or accrued in respect of any\n Debt (including the interest portion of rentals under Capital Leases) and\n all but the principal component of payments in respect of conditional\n sales, equipment trust or other title retention agreements paid, accrued or\n scheduled to be paid or \n\n \n accrued by such Person during such period, determined in accordance with\n generally accepted accounting principles.\n\n \"Interest Period\" means, for each Eurodollar Rate Advance comprising\n --------------- \n part of the same A Borrowing, the period commencing on the date of such\n Type of A Advance or the date of the Conversion of any A Advance into such\n Type of an A Advance and ending on the last day of the period selected by\n the Borrower pursuant to the provisions below and, thereafter, each\n subsequent period commencing on the last day of the immediately preceding\n Interest Period and ending on the last day of the period selected by the\n Borrower pursuant to the provisions below. The duration of each such\n Interest Period shall be 1, 2, 3 or 6 months in the case of a Eurodollar\n Rate Advance, in each case as the Borrower may, upon notice received by the\n Agent not later than 12:00 noon (New York City time) on the third Business\n Day prior to the first day of such Interest Period, select; provided,\n -------- \n however, that:\n ------- \n\n (i) the Borrower may not select any Interest Period which ends\n after the Revolver Termination Date;\n\n (ii) Interest Periods commencing on the same date for A Advances\n comprising part of the same A Borrowing shall be of the same duration;\n\n (iii) whenever the last day of any Interest Period would\n otherwise occur on a day other than a Business Day, the last day of\n such Interest Period shall be extended to occur on the next succeeding\n Business Day, provided, in the case of any Interest Period for a\n -------- \n Eurodollar Rate Advance, that if such extension would cause the last\n day of such Interest Period to occur in the next following calendar\n month, the last day of such Interest Period shall occur on the next\n preceding Business Day; and\n\n (iv) the Borrower may request in a Notice of A Borrowing an\n Interest Period of 9 or 12 months for a Eurodollar Rate Advance and\n the Interest Period for such Eurodollar Rate Advance shall be 9 or 12\n months, as requested by the Borrower, if, and only if, the Agent\n determines a Eurodollar Rate for the tenor of such Interest Period and\n the Majority A Lenders do not notify the Agent pursuant to Section\n 2.09(b) that the Eurodollar Rate for such Interest Period will not\n adequately reflect the cost to such Majority A Lenders of making,\n funding or maintaining their respective Eurodollar Rate Advances for\n such Interest Period; if both of the preceding conditions are not\n satisfied with respect to such requested 9 or 12 month Interest\n Period, the duration of the requested Interest Period shall be the\n alternative specified in the Notice of A Borrowing, or, if no\n alternative Interest Period is selected, 6 months.\n\n \"Issue\" means, with respect to any Letter of Credit, either to issue,\n ----- \n or to extend the expiry of, or to renew, or to increase the amount of, such\n Letter of Credit, and the term \"Issued\" or \"Issuance\" shall have\n ------ -------- \n corresponding meanings.\n\n \"Issuing Bank\" means Citibank or any Affiliate of Citibank that may\n ------------ \n from time to time Issue Letters of Credit for the account of the Borrower\n or for the account of any LC Subsidiary.\n\n \"LC Commitment\" means, as to any LC Lender, the amount set forth\n ------------- \n opposite such LC Lender's name on Schedule I-A hereto under the caption \"LC\n --\n Commitment\" or, if such LC Lender has entered into one or more Assignment\n ----------- \n and Acceptances, the amount set forth for such \n\n \n LC Lender with respect thereto in the Register maintained by the Agent\n pursuant to Section 10.07 hereof, in each case as such amount may be\n reduced or increased from time to time pursuant to Section 3.10.\n\n \"LC Commitment Increase\" has the meaning specified in Section 3.10(b).\n ---------------------- \n\n \"LC Commitment Percentage\" means, with respect to each LC Lender, the\n ------------------------ \n percentage which the then existing LC Commitment of such LC Lender is of\n the LC Commitments of all LC Lenders; provided, however, that with respect\n -------- ------- \n to Letters of Credit which expire after the LC Termination Date has\n occurred, the LC Commitment Percentage of each LC Lender shall be the\n percentage which such LC Lender's LC Commitment immediately prior to the LC\n Termination Date is of the LC Commitment of all LC Lenders immediately\n prior to the LC Termination Date.\n\n \"LC Lender\" means any Lender that has an LC Commitment or which, at\n --------- \n the date of determination, has purchased (pursuant to Section 3.05) a\n participation in a Letter of Credit.\n\n \"LC Subsidiary\" means, as of the date hereof, the Subsidiaries of the\n ------------- \n Borrower listed on Schedule V hereto and, after the date hereof, any other\n Subsidiary of the Borrower that may from time to time become a party hereto\n (with respect to Letters of Credit only) and for whose account the Issuing\n Bank may from time to time Issue Letters of Credit.\n\n \"LC Termination Date\" means, subject to Section 3.12 hereof, June 26,\n ------------------- \n 2001, or the earlier date of termination in whole of the LC Commitments\n pursuant to Section 3.10 or Section 8.01.\n\n \"Lenders\" means the Lenders listed on the signature pages hereof and\n ------- \n each Eligible Assignee that shall become a party hereto pursuant to Section\n 10.07.\n\n \"Letter of Credit\" means a documentary letter of credit in form\n ---------------- \n satisfactory to the Issuing Bank, which is at any time Issued by the\n Issuing Bank pursuant to Article III, in each case as amended, supplemented\n or otherwise modified from time to time.\n\n \"Letter of Credit Liability\" means, as of any date of determination,\n -------------------------- \n all then existing liabilities of the Borrower and the LC Subsidiaries to\n the Issuing Bank in respect of the Letters of Credit Issued for the\n Borrower's account and for the account of the LC Subsidiaries, whether such\n liability is contingent or fixed, and shall, in each case, consist of the\n sum of (i) the aggregate maximum amount (the determination of such maximum\n amount to assume compliance with all conditions for drawing) then available\n to be drawn under such Letters of Credit (including, without limitation,\n amounts available under such Letters of Credit for which a draft has been\n presented but not yet honored) and (ii) the aggregate amount which has then\n been paid by, and not been reimbursed to, the Issuing Bank under such\n Letters of Credit. For the purposes of determining the Letter of Credit\n Liability, the face amount of Letters of Credit outstanding in an\n Alternative Currency shall be expressed as the equivalent of such\n Alternative Currency in Dollars.\n\n \"Lien\" means any assignment, chattel mortgage, pledge or other\n ---- \n security interest or any mortgage, deed of trust or other lien, or other\n charge or encumbrance, upon property or rights (including after-acquired\n property or rights), or any preferential arrangement with respect to\n\n \n property or rights (including after-acquired property or rights) which has\n the practical effect of constituting a security interest or lien.\n\n \"Majority A Lenders\" means, at any time, A Lenders owed at least 66\n ------------------ \n 2\/3% of the then aggregate unpaid principal amount of the A Advances held\n by A Lenders, or, if no such principal amount is then outstanding, A\n Lenders having at least 66 2\/3% of the A Commitments.\n\n \"Majority Combined Lenders\" means the Lenders having at least 66 2\/3%\n ------------------------- \n of the aggregate \"Credit Exposure.\" For the purposes hereof, \"Credit\n Exposure\" of any Lender shall mean, at any date of determination, the\n maximum dollar amount that such Lender could be then required by the terms\n hereof (assuming all conditions to Borrowings and Issuances were satisfied)\n to expend to (i) purchase participations in Letters of Credit pursuant to\n Section 3.05 hereof (including any amounts so expended and not reimbursed\n at the date of determination) and (ii) fund A Advances (including any\n amounts so expended to fund A Advances outstanding on the date of\n determination).\n\n \"Majority LC Lenders\" means, at any time, LC Lenders which have\n ------------------- \n purchased participations in (pursuant to Section 3.05 hereof) at least 66\n 2\/3% of the Letters of Credit and Letter of Credit Liability then\n outstanding, or if no Letters of Credit are then outstanding, LC Lenders\n having at least 66 2\/3% of the LC Commitments.\n\n \"Margin Stock\" has the meaning assigned to such term in Regulation U\n ------------ \n of the Board of Governors of the Federal Reserve System, as in effect from\n time to time.\n\n \"Material Adverse Effect\" means a material adverse effect on the\n ----------------------- \n financial condition or results of operations of the Borrower and its\n Subsidiaries taken as a whole.\n\n \"Multiemployer Plan\" means a \"multiemployer plan\" as defined in\n ------------------ \n Section 4001(a)(3) of ERISA to which the Borrower or any Subsidiary of the\n Borrower or any ERISA Affiliate is making or accruing an obligation to make\n contributions or has within any of the preceding five plan years made or\n accrued an obligation to make contributions.\n\n \"Net Income\" of any Person means, for any period, net income before\n ---------- \n (i) extraordinary items, (ii) the results of discontinued operations and\n (iii) the effect of any cumulative change in accounting principles,\n determined in accordance with generally accepted accounting principles.\n\n \"Non-Retail Assets\" means property (tangible and intangible) that is\n ----------------- \n not used, sold or consumed in a Retail Business.\n\n \"Non-Retail Business\" means, with respect to any Person, that such\n ------------------- \n Person is not engaged in the Retail Business.\n\n \"Notice of A Borrowing\" has the meaning specified in Section 2.02(a).\n --------------------- \n\n \"Notice of B Borrowing\" has the meaning specified in Section 2.03(a).\n --------------------- \n\n \"Obligations\" means all obligations of the Borrower and the LC\n ----------- \n Subsidiaries now or hereafter existing under this Agreement, whether for\n principal (including reimbursement for amounts drawn under Letters of\n Credit), interest, fees, expenses, indemnification or otherwise.\n\n \n \"OECD\" means the Organization for Economic Cooperation and\n ---- \n Development.\n\n \"Original Agreement\" has the meaning specified in Preliminary\n ------------------ \n Statement (1).\n\n \"Other Taxes\" has the meaning specified in Section 4.02(b).\n ----------- \n\n \"Payment Office\" means, for Dollars, the principal office of the\n -------------- \n Issuing Bank in New York City, located on the date hereof at 399 Park\n Avenue, New York, New York 10043, and, for any Alternative Currency, such\n office of the Issuing Bank as shall be from time to time selected by the\n Issuing Bank and notified by the Issuing Bank to the Borrower, the LC\n Subsidiaries and the LC Lenders.\n\n \"Permitted Lien\" means:\n -------------- \n\n (i) Liens for taxes, assessments or governmental charges or levies\n to the extent not past due or to the extent contested, in good faith, by\n appropriate proceedings and for which adequate reserves have been\n established;\n\n (ii) Liens imposed by law, such as materialman's, mechanic's,\n carrier's, worker's, landlord's and repairman's Liens and other similar\n Liens arising in the ordinary course of business which relate to\n obligations which are not overdue for a period of more than 30 days or\n which are being contested in good faith, by appropriate proceedings and for\n which reserves required by generally accepted accounting principles have\n been established;\n\n (iii) pledges or deposits in the ordinary course of business to\n secure nondelinquent obligations under worker's compensation or\n unemployment laws or similar legislation or to secure the performance of\n leases or contracts entered into in the ordinary course of business or of\n public or nondelinquent statutory obligations, bids, or appeal bonds;\n\n (iv) Liens upon or in, and limited to, any property acquired or held\n by the Borrower or any of its Subsidiaries to secure the purchase price of\n such property or to secure indebtedness incurred solely for the purpose of\n financing or refinancing the acquisition of any such property to be subject\n to such Liens, or Liens existing on any such property at the time of\n acquisition;\n\n (v) Liens upon any assets subject to a Capital Lease and securing\n payment of the obligations arising under such Capital Lease;\n\n (vi) zoning restrictions, easements, licenses, landlord's Liens or\n restrictions on the use of property which do not materially impair the use\n of such property in the operation of the business of the Borrower or any of\n its Subsidiaries;\n\n (vii) Liens of the Borrower and its Subsidiaries not described in the\n foregoing clauses (i) through (vi), existing of the date hereof and listed\n on Schedule II hereto;\n\n (viii) Liens not described in subclauses (i) through (vii) above that\n relate to liabilities not in excess of $20,000,000 in the aggregate; and\n\n (ix) extensions, renewals or replacements of Liens described in\n subclauses (iv), (v), (vii) and (viii) for the same or lesser amount;\n provided, that, no such extension, renewal or \n -------- ---- \n\n \n replacement shall extend to or cover any property not theretofore subject\n to the Lien being extended, renewed or replaced.\n\n \"Person\" means an individual, partnership, corporation (including a\n ------ \n business trust), joint stock company, trust, unincorporated association,\n joint venture or other entity, or a government or any political subdivision\n or agency thereof.\n\n \"Plan\" means an employee benefit plan (other than a Multiemployer\n ---- \n Plan) maintained by the Borrower, any Subsidiary of the Borrower or any\n ERISA Affiliate for its employees and subject to Title IV of ERISA.\n\n \"RCRA\" means the Resource Conservation and Recovery Act of 1976, as\n ---- \n amended (42 U.S.C. (S) 6901 et seq.), and any regulations promulgated\n -- --- \n thereunder.\n\n \"Reference Banks\" means Citibank, N.A., HSBC Bank USA and Bank of\n --------------- \n America, N.A.\n\n \"Responsible Officer\" means, with respect to any certificate, report\n ------------------- \n or notice to be delivered or given hereunder, unless the context otherwise\n requires, the president, chief executive officer or chief financial officer\n of the Borrower or other executive officer of the Borrower who in the\n normal performance of his or her operational duties would have knowledge of\n the subject matter relating to such certificate, report or notice.\n\n \"Register\" has the meaning specified in Section 10.07(c).\n -------- \n\n \"Retail Assets\" means property (tangible and intangible) that is used,\n ------------- \n sold or consumed in a Retail Business.\n\n \"Retail Business\" means, with respect to any Person, that such Person\n --------------- \n is engaged in the business of manufacturing, producing, supplying,\n distributing or selling apparel, home furnishings, accessories, specialty\n foods and related products or goods.\n\n \"Revolver Termination Date\" means, subject to Section 2.14 hereof,\n ------------------------- \n June 26, 2001, or the earlier date of termination in whole of the A\n Commitments pursuant to Section 2.05 or 8.01.\n\n \"Subsidiary\" means, with respect to any Person, any corporation,\n ---------- \n partnership, trust or other Person of which more than 50% of the\n outstanding capital stock (or similar property right in the case of\n partnerships and trusts and other Persons) having ordinary voting power to\n elect a majority of the board of directors of such corporation (or similar\n governing body or Person with respect to partnerships and trusts and other\n Persons) (irrespective of whether or not at the time capital stock of any\n other class or classes of such corporation shall or might have voting power\n upon the occurrence of any contingency) is at the time directly or\n indirectly owned by such Person, by such Person and one or more other\n Subsidiaries of such Person, or by one or more other Subsidiaries of such\n Person.\n\n \"Taxes\" has the meaning specified in Section 4.02(a).\n ----- \n\n \"Total Assets\" of any Person means all property, whether real,\n ------------ \n personal, tangible, intangible or otherwise, which, in accordance with\n generally accepted accounting principles, should be included in determining\n total assets as shown on the assets portion of a balance sheet of such\n Person.\n\n \n \"Type\" refers to the distinction among Advances bearing interest at\n ---- \n the Base Rate and Advances bearing interest at the Eurodollar Rate.\n\n \"UCP\" has the meaning specified in Section 3.09.\n --- \n\nSECTION 1.02 Computation of Time Periods. In this Agreement in the\n --------------------------- \ncomputation of periods of time from a specified date to a later specified date,\nthe word \"from\" means \"from and including\" and the words \"to\" and \"until\" each\nmeans \"to but excluding\".\n\nSECTION 1.03 Accounting Terms. All accounting terms not specifically defined \n ---------------- \nherein shall be construed in accordance with generally accepted accounting\nprinciples consistent with those applied in the preparation of the financial\nstatements referred to in Section 6.01(e).\n\n ARTICLE II\n AMOUNTS AND TERMS OF THE ADVANCES\n\nSECTION 2.01 The A Advances. Each A Lender severally agrees, on the terms and\n -------------- \nconditions hereinafter set forth, to make A Advances to the Borrower from time\nto time on any Business Day during the period from the date hereof until the\nRevolver Termination Date in an aggregate amount not to exceed at any time\noutstanding such A Lender's A Commitment, provided, that, the aggregate amount\n -------- ---- \nof the A Commitments of the A Lenders shall be deemed used from time to time to\nthe extent of the aggregate amount of the B Advances then outstanding and such\ndeemed use of the aggregate amount of the A Commitments shall be applied to the\nA Lenders ratably according to their respective A Commitments (such deemed use\nof the aggregate amount of the A Commitments being a \"B Reduction\"). Each A\n ----------- \nBorrowing shall be in an aggregate amount not less than (i) $15,000,000, in the\ncase of an A Borrowing consisting of Eurodollar Rate Advances and (ii)\n$1,000,000, in the case of an A Borrowing consisting of Base Rate Advances, or,\nin each case, in integral multiples of $1,000,000 in excess thereof and shall\nconsist of A Advances of the same Type made on the same day by the A Lenders\nratably according to their respective A Commitments. Within the limits of each\nA Lender's A Commitment, the Borrower may from time to time borrow, prepay\npursuant to Section 2.11(b) and reborrow under this Section 2.01.\n\nSECTION 2.02 Making the A Advances. (a) Each A Borrowing shall be made on\n --------------------- \nnotice given not later than (i) 12:00 noon (New York City time) on the third\nBusiness Day prior to the date of the proposed A Borrowing, if such proposed A\nBorrowing consists of Eurodollar Rate Advances and (ii) 10:00 A.M. (New York\nCity time) on the day of such proposed A Borrowing, if such proposed A Borrowing\nconsists of Base Rate Advances, by the Borrower to the Agent, which shall give\nto each A Lender prompt notice thereof by telecopier. Each such notice of an A\nBorrowing (a \"Notice of A Borrowing\") shall be by telecopier or telephone (and\n --------------------- \nif by telephone, confirmed immediately in writing), in substantially the form of\nExhibit A-1 hereto, specifying therein the requested (i) date of such A\nBorrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate\namount of such A Borrowing and (iv) in the case of an A Borrowing comprised of\nEurodollar Rate Advances, initial Interest Period for each such A Advance. Each\nA Lender shall, before 12:00 noon (New York City time) on the date of such A\nBorrowing, make available for the account of its Applicable Lending Office to\nthe Agent at its address referred to in Section 10.02, in same day funds, such A\nLender's ratable portion of such A Borrowing. After the Agent's receipt of such\nfunds and upon fulfillment of the applicable conditions set forth in Article V,\nthe Agent will make such funds available to the Borrower at the Agent's\naforesaid address.\n\n(b) Anything in subsection (a) above to the contrary notwithstanding, the\n Borrower may not select Eurodollar Rate Advances for any A Borrowing if the\n aggregate amount of such A Borrowing is less than $1,000,000 multiplied by\n the number of A Lenders.\n\n(c) Each Notice of A Borrowing shall be irrevocable and binding on the\n Borrower. In the case of any A Borrowing which the related Notice of A\n Borrowing specifies is to be comprised of Eurodollar Rate Advances, the\n Borrower shall indemnify each A Lender against any loss, cost or expense\n incurred by such \n\n \n A Lender as a result of any failure to fulfill on or before the date\n specified in such Notice of A Borrowing for such A Borrowing the applicable\n conditions set forth in Article V, including, without limitation, any loss\n (including loss of anticipated profits), cost or expense incurred by reason\n of the liquidation or reemployment of deposits or other funds acquired by\n such A Lender to fund the A Advance to be made by such A Lender as part of\n such A Borrowing when such A Advance, as a result of such failure, is not\n made on such date.\n\n(d) Unless the Agent shall have received notice from an A Lender (i) in the\n case of any A Borrowing consisting of (A) Eurodollar Rate Advances or (B)\n Base Rate Advances for which the Notice of A Borrowing is given other than\n on the date thereof, prior to the date of such A Borrowing or (ii) in the\n case of any A Borrowing consisting of Base Rate Advances for which the\n Notice of A Borrowing is given on the date thereof, prior to the time at\n which such A Lender is required to fund such A Borrowing, which notice\n shall in either case state that such A Lender will not make available to\n the Agent such A Lender's ratable portion of such A Borrowing, the Agent\n may assume that such A Lender has made such portion available to the Agent\n on the date of such A Borrowing in accordance with subsection (a) of this\n Section 2.02 and the Agent may, in reliance upon such assumption, make\n available to the Borrower on such date a corresponding amount. If and to\n the extent that such A Lender shall not have so made such ratable portion\n available to the Agent, such A Lender and the Borrower severally agree to\n repay to the Agent forthwith on demand such corresponding amount together\n with interest thereon, for each day from the date such amount is made\n available to the Borrower until the date such amount is repaid to the Agent\n at (x) in the case of the Borrower, the interest rate applicable at the\n time to A Advances comprising such A Borrowing and (y) in the case of such\n A Lender, the Federal Funds Rate. If such A Lender shall repay to the Agent\n such corresponding amount, such amount so repaid shall constitute such A\n Lender's A Advance as part of such A Borrowing for purposes of this\n Agreement.\n\n(e) The failure of any A Lender to make the A Advance to be made by it as part\n of any A Borrowing shall not relieve any other A Lender of its obligation,\n if any, hereunder to make its A Advance on the date of such A Borrowing,\n but no A Lender shall be responsible for the failure of any other A Lender\n to make the A Advance to be made by such other A Lender on the date of any\n A Borrowing.\n\n(f) The Borrower shall, if requested by any A Lender, execute and deliver a\n promissory note, in substantially the form of Exhibit E-1 hereto, payable\n to the order of such A Lender in an original principal amount equal to such\n A Lender's A Commitment, duly executed by the Borrower.\n\nSECTION 2.03 The B Advances. (a) Each A Lender severally agrees that the\n -------------- \nBorrower may make B Borrowings under this Section 2.03 from time to time on any\nBusiness Day during the period from the date hereof until the date occurring 7\ndays prior to the Revolver Termination Date in the manner set forth below;\nprovided, that, following the making of each B Borrowing, the aggregate amount\n-------- ---- \nof the Advances then outstanding shall not exceed the aggregate amount of the A\nCommitments of the A Lenders (computed without regard to any B Reduction).\n\n (i) The Borrower may request a B Borrowing under this Section 2.03\n by delivering to the Agent (or to each A Lender if the Borrower is\n conducting the auction for B Advances pursuant to subsection (g) of this\n Section 2.03), by telecopier, a notice of a B Borrowing (a \"Notice of B\n -----------\n Borrowing\"), in substantially the form of Exhibit A-2 hereto, specifying\n --------- \n the date and aggregate amount of the proposed B Borrowing, the maturity\n date for repayment of each B Advance to be made as part of such B Borrowing\n (which maturity date may not be earlier than the date occurring 7 days\n after the date of such B Borrowing or later than the Revolver Termination\n Date), the interest payment date or dates relating thereto, and any other\n terms to be applicable to such B Borrowing, not later than 3:00 P.M. (New\n York City time) (A) at least one Business Day prior to the date of the\n proposed B Borrowing, if the Borrower shall specify in the Notice of B\n Borrowing that the rates of interest to be offered by the A Lenders shall\n be fixed rates per annum and (B) at least four Business Days prior to the\n date of the proposed B Borrowing, if the Borrower shall instead specify in\n the Notice of B Borrowing the basis to be used by the A Lenders in\n determining the rates of interest to be offered by them. If the Agent is\n\n \n conducting the auction for B Advances, it shall in turn promptly notify\n each A Lender of each request for a B Borrowing received by it from the\n Borrower by sending such A Lender a copy of the related Notice of B\n Borrowing.\n\n (ii) Each A Lender may, if, in its sole discretion, it elects to do\n so, irrevocably offer to make one or more B Advances to the Borrower as\n part of such proposed B Borrowing at a rate or rates of interest specified\n by such Lender in its sole discretion, by notifying the Agent (which shall\n give prompt notice thereof to the Borrower) or the Borrower (if it is\n conducting the auction for B Advances pursuant to subsection (g) of this\n Section 2.03), before 10:30 A.M. (New York City time) (A) on the date of\n such proposed B Borrowing, in the case of a Notice of B Borrowing delivered\n pursuant to clause (A) of paragraph (i) above and (B) three Business Days\n before the date of such proposed B Borrowing, in the case of a Notice of B\n Borrowing delivered pursuant to clause (B) of paragraph (i) above, of the\n minimum amount and maximum amount of each B Advance which such A Lender\n would be willing to make as part of such proposed B Borrowing (which\n amounts may, subject to the proviso to the first sentence of this Section\n 2.03(a), exceed such A Lender's A Commitment), the rate or rates of\n interest therefor and such A Lender's Applicable Lending Office with\n respect to such B Advance; provided, that, if the Agent in its capacity as\n -------- ---- \n an A Lender shall, in its sole discretion, elect to make any such offer and\n the Agent is conducting the auction for B Advances, it shall notify the\n Borrower of such offer before 10:00 A.M. (New York City time) on the date\n on which notice of such election is to be given to the Agent by the other A\n Lenders. If any A Lender shall elect not to make such an offer, such A\n Lender shall so notify the Agent, or the Borrower (if it is conducting the\n auction for the B Advances pursuant to subsection (g) of this Section\n 2.03), before 10:30 A.M. (New York City time) on the date on which notice\n of such election is to be given to the Agent or the Borrower (if it is\n conducting the auction for the B Advances pursuant to subsection (g) of\n this Section 2.03) by the other A Lenders, and such A Lender shall not be\n obligated to, and shall not, make any B Advance as part of such B\n Borrowing; provided, that, the failure by any A Lender to give such notice\n -------- ---- \n shall not cause such A Lender to be obligated to make any B Advance as part\n of such proposed B Borrowing.\n\n (iii) The Borrower shall, in turn, (A) before 12:00 noon (New York\n City time) on the date of such proposed B Borrowing, in the case of a\n Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i)\n above and (B) before 1:00 P.M. (New York City time) three Business Days\n before the date of such proposed B Borrowing, in the case of a Notice of B\n Borrowing delivered pursuant to clause (B) of paragraph (i) above, either:\n\n (x) cancel such B Borrowing by giving the Agent (or each A\n Lender if the Borrower is conducting the auction for the B Advances\n pursuant to subsection (g) of this Section 2.03) notice to that\n effect; or\n\n (y) accept one or more of the offers made by any A Lender or A\n Lenders pursuant to paragraph (ii) above, in its sole discretion, by\n giving notice to the Agent (or each A Lender, if the Borrower is\n conducting the auction for B Advances pursuant to subsection (g) of\n this Section 2.03) of the amount of each B Advance (which amount shall\n be equal to or greater than the minimum amount, and equal to or less\n than the maximum amount, notified to the Borrower by the Agent on\n behalf of such A Lender (or by each A Lender, if the Borrower is\n conducting the auction for B Advances pursuant to subsection (g) of\n this Section 2.03) for such B Advance pursuant to paragraph (ii)\n above) to be made by each A Lender as part of such B Borrowing, and\n reject any remaining \n\n \n offers made by A Lenders pursuant to paragraph (ii) above by giving\n the Agent (or each A Lender, if the Borrower is conducting the auction\n for B Advances pursuant to subsection (g) of this Section 2.03) notice\n to that effect.\n\n (iv) If the Borrower notifies the Agent that such B Borrowing is\n cancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt\n notice thereof to the A Lenders, and such B Borrowing shall not be made.\n\n (v) If the Borrower accepts one or more of the offers made by any A\n Lender or A Lenders pursuant to paragraph (iii)(y) above, the Agent, if it\n is conducting the auction for the B Advances, or the Borrower, if it is\n conducting the auction for the B Advances pursuant to subsection (g) of\n this Section 2.03, shall promptly notify (A) each A Lender that has made an\n offer as described in paragraph (ii) above, of the date and aggregate\n amount of such B Borrowing, of the lowest and highest interest rates\n offered to the Borrower by the A Lenders in connection with such B\n Borrowing and whether or not any offer or offers made by such A Lender\n pursuant to paragraph (ii) above have been accepted by the Borrower and (B)\n each A Lender that is to make a B Advance as part of such B Borrowing, of\n the amount of each B Advance to be made by such A Lender as part of such B\n Borrowing. If the Borrower is conducting the auction for the B Advances\n pursuant to subsection (g) of this Section 2.03, it shall concurrently with\n the notices given by it to the A Lenders pursuant to the previous sentence,\n provide a copy of all such notices to the Agent. The Agent shall in turn\n notify each A Lender that is to make a B Advance as part of such B\n Borrowing, upon receipt, that the Agent has received forms of documents\n appearing to fulfill the applicable conditions set forth in Article V.\n Each A Lender that is to make a B Advance as part of such B Borrowing\n shall, before 2:00 P.M. (New York City time) on the date of such B\n Borrowing specified in the notice received from the Agent (or from the\n Borrower if it is conducting the auction for B Advances pursuant to\n subsection (g) of this Section 2.03) pursuant to clause (A) above or any\n later time when such A Lender shall have received notice from the Agent\n pursuant to the preceding sentence, make available (i) if the Agent is\n conducting the auction for B Advances, to the Agent for the account of its\n Applicable Lending Office at its address referred to in Section 10.02 such\n A Lender's portion of such B Borrowing, in same day funds or (ii) if the\n Borrower is conducting the auction for B Advances pursuant subsection (g)\n of this Section 2.03, to the Borrower at the account designated by it, such\n A Lender's portion of such B Borrowing, in same day funds. Upon\n fulfillment of the applicable conditions set forth in Article V, and after\n receipt by the Agent of such funds (if the Agent conducted the auction\n relating to such B Borrowing), the Agent will make such funds available to\n the Borrower at the Agent's aforesaid address. Promptly after each B\n Borrowing the Agent will notify each A Lender of the amount of the B\n Borrowing, the consequent B Reduction and the dates upon which such B\n Reduction commenced and will terminate.\n\n(b) Each B Borrowing shall be in an aggregate amount not less than $5,000,000\n or an integral multiple of $1,000,000 in excess thereof and, following the\n making of each B Borrowing, the Borrower shall be in compliance with the\n limitation set forth in the proviso to the first sentence of subsection (a)\n above. The Borrower may not accept offers for B Advances in excess of the\n aggregate amount specified in its Notice of B Borrowing given with respect\n to each proposed B Borrowing.\n\n(c) Within the limits and on the conditions set forth in this Section 2.03, the\n Borrower may from time to time borrow under this Section 2.03, repay or\n prepay pursuant to subsection (d) below, and reborrow under this Section\n 2.03. The Borrower may not make more than one B Borrowing on any Business\n Day.\n\n(d) If the Agent conducted the applicable auction relating to the B Advance to\n be repaid, the Borrower shall repay to the Agent for the account of each A\n Lender which has made a B Advance on the maturity date of \n\n \n each B Advance (such maturity date being that specified by the A Lender for\n repayment of such B Advance in the related offer delivered pursuant to\n subsection (a)(ii) above), the then unpaid principal amount of such B\n Advance. If the Borrower conducted the applicable auction relating to the B\n Advance to be repaid, the Borrower shall repay directly to each A Lender\n that made a B Advance on the maturity date of each B Advance (such maturity\n date being that specified by the A Lender for repayment of such B Advance\n in the related offer delivered pursuant to subsection (a)(ii) above), the\n then unpaid principal amount of such B Advance at the account designated by\n such A Lender to the Borrower. The Borrower shall have no right to prepay\n any principal amount of any B Advance unless, and then only on the terms,\n specified for such B Advance in the offer delivered pursuant to subsection\n (a)(ii) above.\n\n(e) The Borrower shall pay interest on the unpaid principal amount of each B\n Advance from the date of such B Advance to the date the principal amount of\n such B Advance is repaid in full, at the rate of interest for such B\n Advance specified by the A Lender making such B Advance in its offer with\n respect thereto delivered pursuant to subsection (a)(ii) above, payable on\n the interest payment date or dates specified by the Borrower in its Notice\n of B Borrowing with respect thereto delivered pursuant to subsection (a)(i)\n above. Such interest shall be paid directly to the A Lender that made the\n B Advance at the account designated by it to the Borrower, if the Borrower\n conducted the applicable auction relating to the B Advance on which\n interest is to be paid, and to the Agent for the account of the Applicable\n Lending Office of each A Lender that made a B Advance, if the Agent\n conducted the auction relating to the B Advance on which interest is to be\n paid.\n\n(f) The indebtedness of the Borrower to an A Lender resulting from each B\n Advance made to the Borrower as part of a B Borrowing shall be evidenced by\n such A Lender's loan account referred to in Section 4.04; provided,\n however, that upon the request of such A Lender, the Borrower shall execute\n and deliver to such A Lender a promissory note, in substantially the form\n of Exhibit E-2 hereto, in the face amount of the B Advance made by such A\n Lender as part of a B Borrowing.\n\n(g) If the Borrower so elects, it may conduct, from time to time, auctions for\n B Advances in accordance with the foregoing provisions. The Borrower shall\n promptly notify the Agent of each such auction for B Advances that it\n conducts hereunder and the amount, term and Lender for each such B Advance\n and each payment made by the Borrower in respect thereof.\n\nSECTION 2.04 Fees.\n ---- \n\n(a) Facility Fee. The Borrower agrees to pay to the Agent for the account of\n ------------ \n each A Lender a facility fee, accruing at the rate of 0.05% from and after\n the date hereof, on the amount of such A Lender's A Commitment (computed\n without giving effect to any B Reduction or any other usage of the A\n Commitment of such A Lender), payable quarterly in arrears on the last day\n of each January, April, July and October and on the Revolver Termination\n Date.\n\n(b) Utilization Fee. The Borrower agrees to pay to the Agent for the account\n --------------- \n of each A Lender a utilization fee, accruing, during all periods from and\n after the date hereof when the aggregate amount of outstanding A Advances\n made by such A Lender exceeds 50% of such A Lender's A Commitment (without\n regard to any usage thereof), at the rate of 0.05% per annum on the\n aggregate amount of such A Advances outstanding from time to time during\n such periods, payable quarterly in arrears on the last day of each January,\n April, July and October and on the Revolver Termination Date.\n\n(c) Other Fees. The Borrower hereby agrees to pay the fees and charges\n ---------- \n referred to in that certain letter agreement, dated as of the date hereof,\n among the Borrower, the Issuing Bank and the Agent.\n\nSECTION 2.05 Reduction and Increase of the A Commitments. (a) The Borrower \n -------------------------------------------- \nshall have the right, upon at least three Business Days' notice to the Agent, to\nirrevocably terminate in whole or reduce ratably in part the unused portions of\nthe respective A Commitments of the A Lenders, provided, that, the aggregate \n -------- ---- \namount of the A Commitments of the A Lenders shall not be reduced to an amount\nwhich is less than the aggregate principal amount of the B Advances then\noutstanding and provided, further, that each partial reduction shall be in the \n -------- ------- \naggregate amount of $25,000,000 or an integral multiple of $1,000,000 in excess\nthereof.\n\n \n(b) Not more frequently than once in any period of twelve consecutive calendar\nmonths occurring after the date hereof, the Borrower shall have the right prior\nto the Revolver Termination Date to increase the amount of the A Commitments of\none or more A Lenders (each such increase being an \"A Commitment Increase\"),\n ---------------------\nprovided that such A Lenders shall have consented to such A Commitment Increase\n(which consent may be granted or withheld by any A Lender in its sole and\nabsolute discretion), on and subject to the following terms:\n\n (i) The aggregate amount of all A Commitment Increases and LC\n Commitment Increases shall not exceed $200,000,000 after the date hereof;\n\n (ii) The aggregate amount of each A Commitment Increase shall be\n in a minimum amount of $10,000,000 or an integral multiple of $1,000,000 in\n excess thereof;\n\n (iii) Each A Commitment Increase shall increase the aggregate\n amount of the A Commitments by the same amount;\n\n (iv) No proposed A Commitment Increase shall occur unless each\n of the following requirements in respect thereof shall have been satisfied:\n\n (A) The Agent shall have received from the Borrower an\n irrevocable written notice (an \"A Commitment Increase Notice\"), dated\n ---------------------------- \n not earlier than 60 days before the proposed A Commitment Increase\n Effective Date (as defined below) therefor and not later than 30 days\n before such proposed A Commitment Increase Effective Date, that (1)\n specifies (x) the aggregate amount of the proposed A Commitment\n Increase, (y) the A Lenders whose A Commitments are to be increased by\n the proposed A Commitment Increase and the amount by which each such A\n Lender's A Commitment is to be so increased and (z) the date (the \"A\n -\n Commitment Increase Effective Date\") on which the proposed A\n ---------------------------------- \n Commitment Increase shall become effective, and (2) has been signed by\n each A Lender whose A Commitment is to be increased, evidencing the\n consent of such A Lender to the proposed A Commitment Increase; and\n\n (B) On and as of the A Commitment Increase Effective Date\n of the proposed A Commitment Increase (1) the following statements\n shall be true (and the giving of the applicable A Commitment Increase\n Notice shall constitute a representation and warranty by the Borrower\n that on such A Commitment Increase Effective Date such statements are\n true):\n\n (x) The representations and warranties contained in\n Section 6.01 are correct on and as of such A Commitment\n Increase Effective Date before and after giving effect to\n the proposed A Commitment Increase, as though made on and as\n of such date, and\n\n (y) No event has occurred and is continuing, or would\n result from such A Commitment Increase, which constitutes an\n Event of Default or Default; and\n\n (2) the Agent shall have received such other approvals, opinions or\n documents as the Agent may reasonably request;\n\n \n (v) Promptly following its receipt of an A Commitment Increase\n Notice in proper form, the Agent shall deliver copies thereof to each A\n Lender. If, and only if, all of the terms, conditions and requirements\n specified in paragraphs (i) through (iv) are satisfied in respect of any\n proposed A Commitment on and as of the proposed A Commitment Increase\n Effective Date thereof, then, as of such A Commitment Increase Effective\n Date and from and after such date, (1) the A Commitments of the A Lenders\n consenting to such A Commitment Increase shall be increased by the\n respective amounts specified in the A Commitment Increase Notice pertaining\n thereto and (2) references herein to the amounts of the A Lenders'\n respective A Commitments shall refer to respective amounts giving effect to\n such A Commitment Increase;\n\n (vi) It is understood that no A Lender shall have any\n obligation whatsoever to agree to any request made by the Borrower for an A\n Commitment Increase;\n\n (vii) On each A Commitment Increase Effective Date, each A\n Lender whose A Commitment has been increased (each such A Lender being an\n \"Increasing A Lender\") shall, before 12:00 noon (New York City time) on\n ------------------- \n such A Commitment Increase Effective Date, make available for the account\n of its Applicable Lending Office to the Agent at the address specified in\n Section 10.02, in same day funds, an amount equal to the excess of (A) such\n Increasing A Lender's ratable portion of the A Borrowings then outstanding\n (calculated based on its A Commitment as a percentage of the aggregate A\n Commitments of the A Lenders outstanding after giving effect to the\n relevant A Commitment Increase) over (B) the aggregate principal amount of\n then outstanding A Advances made by such Increasing A Lender; and\n\n (viii) After the Agent's receipt of such funds from each such\n Increasing A Lender, the Agent will promptly thereafter cause to be\n distributed like funds to the other A Lenders for the account of their\n respective Applicable Lending Offices in an amount to each other A Lender\n such that the aggregate amount of the outstanding A Advances owing to each\n A Lender after giving effect to such distribution equals such A Lender's\n ratable portion of the A Borrowings then outstanding (calculated based on\n its A Commitment as a percentage of the aggregate A Commitments of the A\n Lenders outstanding after giving effect to the relevant A Commitment\n Increase). If the A Commitment Increase Effective Date shall occur on a\n date that is not the last day of the Interest Period for all Eurodollar\n Rate Advances then outstanding, (1) the Borrower shall pay any amounts\n owing pursuant to Section 10.04(b) as a result of the distributions to A\n Lenders under this Section 2.05(b) and (2) for each A Borrowing comprised\n of Eurodollar Rate Advances, the respective A Advances made by the\n Increasing A Lenders pursuant to this Section 2.05(b) in respect of such A\n Borrowing shall be Base Rate Advances until the last day of the then\n existing Interest Period for such A Borrowing.\n\nSECTION 2.06 Repayment of A Advances. The Borrower shall repay in full the \n ----------------------- \nprincipal amount of each A Advance owing to each A Lender, together with accrued\ninterest and fees thereon, on the Revolver Termination Date.\n\nSECTION 2.07 Interest on A Advances. The Borrower shall pay interest on the \n ---------------------- \nunpaid principal amount of each A Advance made by each A Lender from the date of\nsuch A Advance until such principal amount shall be paid in full, at the\nfollowing rates per annum:\n\n (a) Base Rate Advances. If such A Advance is a Base Rate Advance, a\n ------------------ \n rate per annum equal at all times to the Base Rate in effect from time to\n time, payable quarterly on the last day of each April, July, October, and\n January and on the date such Base Rate Advance shall be Converted or paid\n in full; provided, that, any amount of principal which is not paid when due\n -------- ---- \n (whether at stated maturity, by acceleration or otherwise) shall bear\n interest, from the date on \n\n \n which such amount is due until such amount is paid in full, payable on\n demand, at a rate per annum equal at all times to 2% per annum above the\n Base Rate in effect from time to time.\n\n (b) Eurodollar Rate Advances. If such A Advance is a Eurodollar\n ------------------------ \n Rate Advance, a rate per annum equal at all times during each Interest\n Period for such A Advance to the sum of the Eurodollar Rate for such\n Interest Period plus the Eurodollar Rate Margin, payable on the last day of\n such Interest Period and, if such Interest Period has a duration of more\n than three months, on each day which occurs during such Interest Period\n every three months from the first day of such Interest Period; provided,\n -------- \n that, any amount of principal which is not paid when due (whether at stated\n ---- \n maturity, by acceleration or otherwise) shall bear interest, from the date\n on which such amount is due until such amount is paid in full, payable on\n demand, at a rate per annum equal at all times to (x) after the expiration\n of the Interest Period related to such principal amount, 2% per annum above\n the Base Rate in effect from time to time and (y) prior to the expiration\n of the Interest Period related to such principal amount, 2% per annum above\n the rate per annum required to be paid on such A Advance immediately prior\n to the date on which such principal amount became due.\n\nSECTION 2.08 Additional Interest on Eurodollar Rate Advances. The Borrower\n ----------------------------------------------- \nshall pay to each A Lender, so long as such A Lender shall be required under\nregulations of the Board of Governors of the Federal Reserve System to maintain\nreserves with respect to liabilities or assets consisting of or including\nEurocurrency Liabilities, additional interest on the unpaid principal amount of\neach Eurodollar Rate Advance of such A Lender, from the date of such A Advance\nuntil such principal amount is paid in full, at an interest rate per annum equal\nat all times to the remainder obtained by subtracting (i) the Eurodollar Rate\nfor the Interest Period for such A Advance from (ii) the rate obtained by\ndividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar\nRate Reserve Percentage of such A Lender for such Interest Period, payable on\neach date on which interest is payable on such A Advance. Such additional\ninterest shall be determined by such A Lender and notified to the Borrower\nthrough the Agent.\n\nSECTION 2.09 Interest Rate Determination. (a) Each Reference Bank agrees to \n --------------------------- \nfurnish to the Agent timely information for the purpose of determining the\nEurodollar Rate. If any one or more of the Reference Banks shall not furnish\nsuch timely information to the Agent for the purpose of determining such\ninterest rate, the Agent shall determine such interest rate on the basis of\ntimely information furnished by the remaining Reference Banks. The Agent shall\ngive prompt notice to the Borrower and the A Lenders of the applicable interest\nrate determined by the Agent for purposes of Section 2.07(a) or (b), and the\napplicable rate, if any, furnished by each Reference Bank for the purpose of\ndetermining the applicable interest rate under Section 2.07(b).\n\n(b) If, with respect to any Eurodollar Rate Advances, the Majority A Lenders\nnotify the Agent that the Eurodollar Rate for any Interest Period for such\nAdvances will not adequately reflect the cost to such Majority A Lenders of\nmaking, funding or maintaining their respective Eurodollar Rate Advances for\nsuch Interest Period, the Agent shall forthwith so notify the Borrower and the A\nLenders, whereupon:\n\n (i) each outstanding Eurodollar Rate Advance will\n automatically, on the last day of the then existing Interest Period\n therefor, Convert into a Base Rate Advance, and\n\n (ii) the obligation of the A Lenders to make, or to Convert A\n Advances into, Eurodollar Rate Advances shall be suspended until the Agent\n shall notify the Borrower and the A Lenders that the circumstances causing\n such suspension no longer exist.\n\n(c) If the Borrower shall fail to select the duration of any Interest Period\nfor any Eurodollar Rate Advances in accordance with the provisions contained in\nthe definition of \"Interest Period\" in Section 1.01, the Agent\n --------------- \n\n \nwill forthwith so notify the Borrower and the A Lenders and such Advances will\nautomatically, on the last day of the then existing Interest Period therefor,\nConvert into Base Rate Advances.\n\n(d) On the date on which the aggregate unpaid principal amount of A Advances\ncomprising any A Borrowing shall be reduced, by payment or prepayment or\notherwise, to less than $1,000,000 multiplied by the number of A Lenders, such A\nAdvances shall, if they are A Advances of a Type other than Base Rate Advances,\nautomatically Convert into Base Rate Advances, and on and after such date the\nright of the Borrower to Convert such A Advances into A Advances of a Type other\nthan Base Rate Advances shall terminate; provided, however, that if and so long\n -------- -------\nas each such A Advance shall be of the same Type and have the same Interest\nPeriod as A Advances comprising another A Borrowing or other A Borrowings, and\nthe aggregate unpaid principal amount of all such A Advances shall equal or\nexceed $1,000,000 multiplied by the number of A Lenders, the Borrower shall have\nthe right to continue all such A Advances as, or to Convert all such A Advances\ninto, A Advances of such Type having such Interest Period.\n\n(e) If fewer than two Reference Banks furnish timely information to the Agent\nfor determining the Eurodollar Rate for any Eurodollar Rate Advances,\n\n (i) the Agent shall forthwith notify the Borrower and the A\n Lenders that the interest rate cannot be determined for such Eurodollar\n Rate Advances,\n\n (ii) each such A Advance will automatically, on the last day of\n the then existing Interest Period therefor, Convert into a Base Rate\n Advance (or if such A Advance is then a Base Rate Advance, will continue as\n a Base Rate Advance), and\n\n (iii) the obligation of the A Lenders to make, or to Convert A\n Advances into, Eurodollar Rate Advances shall be suspended until the Agent\n shall notify the Borrower and the Lenders that the circumstances causing\n such suspension no longer exist.\n\nSECTION 2.10 Voluntary Conversion of A Advances. The Borrower may on any\n ---------------------------------- \nBusiness Day, upon notice given to the Agent not later than 12:00 noon (New York\nCity time) on the third Business Day prior to the date of the proposed\nConversion and subject to the provisions of Sections 2.09 and 2.13, Convert all\nA Advances of one Type comprising the same A Borrowing into A Advances of\nanother Type; provided, however, that any Conversion of any Eurodollar Rate\n -------- ------- \nAdvances into A Advances of another Type shall be made on, and only on, the last\nday of an Interest Period for such Eurodollar Rate Advances. Each such notice\nof a Conversion shall, within the restrictions specified above, specify (i) the\ndate of such Conversion, (ii) the A Advances to be Converted, and (iii) if such\nConversion is into Eurodollar Rate Advances, the duration of the Interest Period\nfor each such A Advance.\n\nSECTION 2.11 No Prepayments of A Advances. (a) The Borrower shall have no\n ---------------------------- \nright to prepay any principal amount of any A Advances other than as provided in\nsubsection (b) below or Section 2.14.\n\n(b) The Borrower may, upon at least (i) two Business Days', in the case of\nEurodollar Rate Advances and (ii) same Business Day's, in the case of Base Rate\nAdvances, notice to the Agent (to be received by the Agent prior to 12:00 noon\n(New York City time)) stating the proposed date and aggregate principal amount\nof the prepayment, and if such notice is given the Borrower shall, prepay the\noutstanding principal amounts of the A Advances comprising part of the same A\nBorrowing in whole or ratably in part, together with accrued interest to the\ndate of such prepayment on the principal amount prepaid; provided, however, that\n -------- -------\n(x) each partial prepayment shall be in an aggregate principal amount not less\nthan $15,000,000 if made with respect to Eurodollar Rate Advances, or\n$1,000,000, if made with respect to Base Rate Advances, and in each case in\n$1,000,000 integral multiples in excess thereof and (y) in the case of any such\nprepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to\nreimburse the A Lenders in respect thereof pursuant to Section 10.04(b).\n\nSECTION 2.12 Increased Costs. (a) If, due to either (i) the introduction of \n --------------- \nor any change at any time after the date of this Agreement (other than any\nchange by way of imposition or increase of reserve requirements \n\n \nin the case of Eurodollar Rate Advances, included in the Eurodollar Rate Reserve\nPercentage) in or in the interpretation of any law or regulation or (ii) the\ncompliance after the date of this Agreement with any guideline or request from\nany central bank or other governmental authority (whether or not having the\nforce of law), there shall be any increase in the cost to any A Lender of\nagreeing to make or making, funding or maintaining Eurodollar Rate Advances,\nthen the Borrower shall from time to time, upon demand by such A Lender (with a\ncopy of such demand to the Agent), pay to the Agent for the account of such A\nLender additional amounts sufficient to compensate such A Lender for such\nincreased cost; provided, that, the Borrower shall have no obligation to\n -------- ---- \nreimburse any A Lender for increased costs incurred more than 60 days prior to\nthe date of such demand. A certificate as to the amount of such increased cost\nsetting forth the basis for the calculation of such increased costs, submitted\nto the Borrower and the Agent by such A Lender, shall be conclusive and binding\nfor all purposes, absent manifest error.\n\n(b) If, at any time after the date of this Agreement, any A Lender determines\nthat compliance with any law or regulation or any guideline or request from any\ncentral bank or other governmental authority (whether or not having the force of\nlaw) affects or would affect the amount of capital required or expected to be\nmaintained by such A Lender or any corporation controlling such A Lender and\nthat the amount of such capital is increased by or based upon the existence of\nsuch A Lender's commitment to lend hereunder and other commitments of this type,\nthen, upon demand by such A Lender (with a copy of such demand to the Agent),\nthe Borrower shall immediately pay to the Agent for the account of such A\nLender, from time to time as specified by such A Lender, additional amounts\nsufficient to compensate such A Lender or such corporation in the light of such\ncircumstances, to the extent that such A Lender reasonably determines such\nincrease in capital to be allocable to the existence of such A Lender's\ncommitment to lend hereunder; provided, that, the Borrower shall have no\n -------- ----\nobligation to pay such compensatory amounts that relate to an actual increase in\nthe capital of such A Lender undertaken by such A Lender more than 60 days prior\nto the date of such demand. A certificate as to such amounts submitted to the\nBorrower and the Agent by such A Lender and setting forth the basis for the\ncalculation of such amount shall be conclusive and binding for all purposes,\nabsent manifest error.\n\n(c) Without affecting its rights under Sections 2.12(a) or 2.12(b) or any other\nprovision of this Agreement, each A Lender agrees that if there is any increase\nin any cost to or reduction in any amount receivable by such A Lender with\nrespect to which the Borrower would be obligated to compensate such A Lender\npursuant to Sections 2.12(a) or 2.12(b), such A Lender shall use reasonable\nefforts to select an alternative Applicable Lending Office which would not\nresult in any such increase in any cost to or reduction in any amount receivable\nby such A Lender; provided, however, that no A Lender shall be obligated to\n -------- -------\nselect an alternative Applicable Lending Office if such A Lender determines that\n(i) as a result of such selection such A Lender would be in violation of any\napplicable law, regulation, treaty, or guideline, or would incur additional\ncosts or expenses or (ii) such selection would be inadvisable for regulatory\nreasons or inconsistent with the interests of such A Lender.\n\n(d) Without prejudice to the survival of any other agreement of the Borrower\nhereunder, the agreements and obligations of the Borrower contained in this\nSection 2.12 shall survive the payment in full (after the Revolver Termination\nDate) of all Obligations.\n\nSECTION 2.13 Illegality. (a) Notwithstanding any other provision of this\n ---------- \nAgreement, if any A Lender shall notify the Agent that the introduction of or\nany change in or in the interpretation of any law or regulation makes it\nunlawful or impossible, or any central bank or other governmental authority\nasserts that it is unlawful, for any A Lender or its Eurodollar Lending Office\nto perform its obligations hereunder to make Eurodollar Rate Advances or to fund\nor maintain Eurodollar Rate Advances hereunder, (i) the obligation of the A\nLenders to make, or to Convert A Advances into, Eurodollar Rate Advances shall\nbe suspended until the Agent shall notify the Borrower and the A Lenders that\nthe circumstances causing such suspension no longer exist and (ii) the Borrower\nshall forthwith prepay in full all Eurodollar Rate Advances of all A Lenders\nthen outstanding, together with interest accrued thereon, unless the Borrower,\nwithin five \n\n \nBusiness Days of notice from the Agent, Converts all Eurodollar Rate Advances of\nall A Lenders then outstanding into A Advances of another Type in accordance\nwith Section 2.10.\n\n(b) Without affecting its rights under Section 2.13(a) or under any other\n --------------- \nprovision of this Agreement, each A Lender agrees that if it becomes unlawful or\nimpossible for such A Lender to make, maintain or fund its Eurodollar Rate\nAdvances as contemplated by this Agreement, such A Lender shall use reasonable\nefforts to select an alternative Applicable Lending Office from which such A\nLender may maintain and give effect to its obligations under this Agreement with\nrespect to making, funding and maintaining such Eurodollar Rate Advances;\nprovided, however, that no A Lender shall be obligated to select an alternative\n-------- -------\nApplicable Lending Office if such A Lender determines that (i) as a result of\nsuch selection such A Lender would be in violation of any applicable law,\nregulation, or treaty, or would incur additional costs or expenses or (ii) such\nselection would be inadvisable for regulatory reasons or inconsistent with the\ninterests of such A Lender.\n\nSECTION 2.14 Extension of Revolver Termination Date. At least 30 but not\n -------------------------------------- \nmore than 45 days prior to the next Revolver Termination Date, the Borrower, by\nwritten notice to the Agent, may request that the Revolver Termination Date be\nextended for a period of 364 days from its then current scheduled expiration.\nThe Agent shall promptly notify each A Lender of such request, and each A Lender\nshall in turn, within 20 days prior to such Revolver Termination Date, notify\nthe Borrower and the Agent in writing regarding whether such A Lender will\nconsent to such extension. If, and only if, (i) the Majority A Lenders consent\nin writing to such extension prior to the tenth day preceding such Revolver\nTermination Date and (ii) the Majority LC Lenders and the Issuing Bank consent\nto an extension of the LC Termination Date pursuant to Section 3.12, the\nRevolver Termination Date shall be so extended for such 364-day period and\nreferences herein to the \"Revolver Termination Date\" shall refer to such\n ------------------------- \n\"Revolver Termination Date\" as so extended. If any A Lender does not consent to\n ------------------------- \nany requested extension or any A Lender shall fail to deliver such notice to the\nBorrower and the Agent as provided above, in which event such A Lender shall be\ndeemed to not have consented, (each such A Lender being a \"Declining A Lender\"),\n ------------------ \nsuch Declining A Lender's A Commitment shall terminate on the scheduled Revolver\nTermination Date and on such scheduled Revolver Termination Date, the Borrower\nshall repay in full the principal amount of A Advances owing to such Declining A\nLender, together with accrued interest thereon to the date of payment of such\nprincipal amount, all fees payable to such Declining A Lender and all other\namounts payable to such Declining A Lender under this Agreement (including, but\nnot limited to, any increased costs or other additional amounts owing under\nSection 2.12, any indemnification for Taxes or Other Taxes under Section 4.02,\nand any amounts which may be required to be paid by the Borrower pursuant to\nSection 10.04(b)). It is understood that no A Lender shall have any obligation\nwhatsoever to agree to any request made by the Borrower for an extension of the\nRevolver Termination Date.\n\n ARTICLE III\n AMOUNT AND TERMS OF LETTERS OF\n CREDIT AND PARTICIPATIONS THEREIN\n\nSECTION 3.01 Letters of Credit. The Issuing Bank agrees, on the terms and\n ----------------- \nconditions hereinafter set forth, to Issue for the account of the Borrower or\nany LC Subsidiary, one or more Letters of Credit from time to time during the\nperiod from the date of this Agreement until the LC Termination Date in an\naggregate undrawn amount not to exceed at any time the LC Commitments of the LC\nLenders in effect at such time (inclusive of the Dollar equivalent of Letters of\nCredit Issued in an Alternative Currency), each such Letter of Credit upon its\nIssuance to expire on or before the date which occurs one year from the date of\nits Issuance; provided, however, that the Issuing Bank shall not be obligated\n -------- ------- \nto, and shall not, Issue any Letter of Credit if:\n\n (i) after giving effect to the Issuance of such Letter of Credit, the\n then outstanding aggregate amount of all Letter of Credit Liability shall\n exceed the total of the LC Commitments of the LC Lenders; or\n\n \n (ii) the Agent or the Majority LC Lenders shall have notified the\n Issuing Bank and the Borrower that no further Letters of Credit are to be\n Issued by the Issuing Bank due to failure to meet any of the applicable\n conditions set forth in Article V, and such notice has not been withdrawn.\n\nWithin the limits of the obligations of the Issuing Bank set forth above and in\nSection 3.02, the Borrower and each LC Subsidiary may request the Issuing Bank\nto Issue one or more Letters of Credit, reimburse the Issuing Bank for payments\nmade thereunder pursuant to Section 3.04(a) and request the Issuing Bank to\nIssue one or more additional Letters of Credit under this Section 3.01.\n\nSECTION 3.02 Limitation on the Issuance of Letters of Credit Denominated in\n --------------------------------------------------------------\nAlternative Currencies. The Issuing Bank shall not be obligated to, and shall\n---------------------- \nnot, Issue any Letter of Credit denominated in an Alternative Currency if, after\ngiving effect to the Issuance of any Letter of Credit denominated in an\nAlternative Currency, the then outstanding aggregate amount of all Letter of\nCredit Liability with respect to all Letters of Credit denominated in an\nAlternative Currency equals or exceeds (on a Dollar equivalent basis)\n$75,000,000.\n\nSECTION 3.03 Issuing the Letters of Credit. Each Letter of Credit shall be\n ----------------------------- \nIssued on notice from the Borrower or any LC Subsidiary, as the case may be, to\nthe Issuing Bank as provided in the application and agreement governing such\nLetter of Credit specifying the date, amount, currency, expiry and beneficiary\nthereof, accompanied by such documents as the Issuing Bank may specify to the\nBorrower or LC Subsidiary, as the case may be, in form and substance\nsatisfactory to the Issuing Bank. On the date specified by the Borrower or LC\nSubsidiary, as the case may be, in such notice and upon fulfillment of the\napplicable conditions set forth in Section 3.01, the Issuing Bank will Issue\nsuch Letter of Credit and shall promptly notify the Agent thereof.\n\nSECTION 3.04 Reimbursement Obligations. (a) The Borrower or the appropriate \n ------------------------- \nLC Subsidiary, as the case may be, shall:\n\n (i) pay to the Issuing Bank an amount equal to, and in reimbursement\n for, each amount which the Issuing Bank pays under any Letter of Credit not\n later than the date which occurs one Business Day after payment of such\n amount by the Issuing Bank under such Letter of Credit; and\n\n (ii) pay to the Issuing Bank interest on any amount paid by the\n Issuing Bank under any Letter of Credit from the date on which the Issuing\n Bank pays such amount under any Letter of Credit until such amount is\n reimbursed in full to the Issuing Bank pursuant to clause (i) above,\n payable on demand, at a fluctuating rate per annum equal to the sum of the\n Base Rate in effect from time to time plus 2% per annum.\n\n(b) All amounts to be reimbursed to the Issuing Bank in accordance with\nsubsection (a) above may, subject to the limitations set forth in Section 2.01\n(inclusive of the minimum borrowing limitations), be paid from the proceeds of A\nAdvances or B Advances.\n\nSECTION 3.05 Participations Purchased by the Lenders. (a) On the date of\n --------------------------------------- \nIssuance of each Letter of Credit the Issuing Bank shall be deemed irrevocably\nand unconditionally to have sold and transferred to each LC Lender without\nrecourse or warranty, and each LC Lender shall be deemed to have irrevocably and\nunconditionally purchased and received from the Issuing Bank, an undivided\ninterest and participation, to the extent of such Lender's LC Commitment\nPercentage in effect from time to time, in such Letter of Credit and all Letter\nof Credit Liability relating to such Letter of Credit and all documents\nsecuring, guaranteeing, supporting, or otherwise benefitting the payment of such\nLetter of Credit Liability. The Agent or the Issuing Bank will notify each\nLender promptly after the close of each calendar month of all Letters of Credit\nthen \n\n \noutstanding and of their respective dates of Issue, outstanding amounts (on a\nDollar equivalent basis) as at the end of such month, currency, expiry dates and\nreference numbers.\n\n(b) In the event that any reimbursement obligation under Section 3.04(a) is not\npaid when due to the Issuing Bank with respect to any Letter of Credit, the\nIssuing Bank shall promptly notify the LC Lenders of the amount of such\nreimbursement obligation (on a Dollar equivalent basis in the case of Letters of\nCredit denominated in an Alternative Currency) and each LC Lender shall\nimmediately pay to the Issuing Bank, in lawful money of the United States and in\nsame day funds, an amount equal to such LC Lender's LC Commitment Percentage\nthen in effect of the amount of such unpaid reimbursement obligation with\ninterest at the Federal Funds Rate for each day after such notification until\nsuch amount is paid to the Issuing Bank.\n\n(c) Promptly after the Issuing Bank receives a payment (including interest\npayments) on account of a reimbursement obligation with respect to any Letter of\nCredit, the Issuing Bank shall promptly pay to each LC Lender which funded its\nparticipation therein, in lawful money of the United States, the Dollar\nequivalent of funds so received, in an amount equal to such LC Lender's\nCommitment Percentage thereof.\n\n(d) Upon the request of any LC Lender, the Agent shall furnish, or cause the\nIssuing Bank to furnish, to such LC Lender copies of any outstanding Letter of\nCredit and any application and agreement for letter of credit as may be\nreasonably requested by such LC Lender.\n\n(e) The obligation of each LC Lender to make payments under subsection (b)\nabove shall be unconditional and irrevocable and shall remain in effect after\nthe occurrence of the LC Termination Date with respect to any Letter of Credit\nthat was Issued by the Issuing Bank on behalf of the Borrower or any LC\nSubsidiary on or before the LC Termination Date and such payments shall be made\nunder all circumstances, including, without limitation, any of the circumstances\nreferred to in Section 3.07(b) other than in connection with circumstances\ninvolving any willful misconduct or gross negligence of the Issuing Bank in\nIssuing a Letter of Credit or in determining whether documents presented under a\nLetter of Credit comply with the terms thereof.\n\n(f) If any payment received on account of any reimbursement obligation with\nrespect to a Letter of Credit and distributed to an LC Lender as a participant\nunder Section 3.05(c) is thereafter recovered from the Issuing Bank in\nconnection with any bankruptcy or insolvency proceeding relating to the Borrower\nor an LC Subsidiary, each LC Lender which received such distribution shall, upon\ndemand by the Issuing Bank, repay to the Issuing Bank such LC Lender's ratable\nshare of the amount so recovered together with an amount equal to such LC\nLender's ratable share (according to the proportion of (i) the amount of such LC\nLender's required repayment to (ii) the total amount so recovered) of any\ninterest or other amount paid or payable by the Issuing Bank in respect of the\ntotal amount so recovered.\n\nSECTION 3.06 Letter of Credit Fees. (a) Facility Fee. The Borrower\n --------------------- ------------ \nhereby agrees to pay to the Issuing Bank for the account of each LC Lender (in\naccordance with its LC Commitment Percentage) a letter of credit facility fee,\naccruing at a rate of 0.05% per annum from and after the date hereof, (i) on the\ntotal amount of LC Commitments from time to time from and after such date\n(regardless of the actual or deemed usage thereof) payable quarterly in arrears\non the last day of each January, April, July and October and on the LC\nTermination Date and (ii) on the aggregate amount of Letter of Credit Liability\nunder all Letters of Credit that are outstanding beyond the LC Termination Date\n(regardless of the actual or deemed usage thereof) payable in arrears on the\nlast day of each January, April, July and October and on the first day after the\nLC Termination Date on which no Letters of Credit are outstanding.\n\n(b) Issuing Bank Fees. The Borrower hereby agrees to pay to the Issuing Bank\n ----------------- \nthe fees and charges referred to in that certain letter agreement, dated as of\nthe date hereof, among the Borrower, the Issuing Bank and the Agent.\n\nSECTION 3.07 Indemnification; Nature of the Issuing Bank's Duties. (a) The \n ---------------------------------------------------- \nBorrower agrees to indemnify and save harmless the Agent, the Issuing Bank and\neach Lender from and against any and all claims, demands, liabilities, damages,\nlosses, costs, charges and expenses (including reasonable attorneys' fees) which\nthe Agent, the Issuing Bank or such Lender may incur or be subject to as a\nconsequence, direct \n\n \nor indirect, of (i) the Issuance of any Letter of Credit or (ii) any action or\nproceeding relating to a court order, injunction, or other process or decree\nrestraining or seeking to restrain the Issuing Bank from paying any amount under\nany Letter of Credit; provided, that, the Issuing Bank shall not be indemnified\n -------- ---- \nfor any of the foregoing caused by its gross negligence or willful misconduct.\n\n(b) The obligations of the Borrower and each LC Subsidiary hereunder with\nrespect to Letters of Credit shall be unconditional and irrevocable, and shall\nbe paid strictly in accordance with the terms hereof under all circumstances,\nincluding, without limitation, any of the following circumstances:\n\n (i) any lack of validity or enforceability of any Letter of\n Credit or this Agreement or any agreement or instrument relating\n thereto;\n\n (ii) the existence of any claim, setoff, defense or other right\n which the Borrower or any LC Subsidiary may have at any time against\n the beneficiary, or any transferee, of any Letter of Credit, or the\n Issuing Bank, any Lender, or any other Person;\n\n (iii) any draft, certificate, or other document presented under\n any Letter of Credit proving to be forged, fraudulent, invalid or\n insufficient in any respect or any statement therein being untrue or\n inaccurate in any respect;\n\n (iv) any lack of validity, effectiveness, or sufficiency of any\n instrument transferring or assigning or purporting to transfer or\n assign any Letter of Credit or the rights or benefits thereunder or\n proceeds thereof, in whole or in part;\n\n (v) any loss or delay in the transmission or otherwise of any\n document required in order to make a drawing under any Letter of\n Credit or of the proceeds thereof;\n\n (vi) any exchange, release or non-perfection of any collateral,\n or any release or non-perfection of any collateral, or any release or\n amendment or waiver of or consent to departure from any guarantee, for\n all or any of the obligations of the Borrower or an LC Subsidiary in\n respect of the Letters of Credit;\n\n (vii) any change in the time, manner or place of payment of, or\n in any other terms of, all or any of the obligations of the Borrower\n or any LC Subsidiary in respect of the Letters of Credit or any other\n amendment or waiver of or any consent to departure from all or any of\n this Agreement;\n\n (viii) any failure of the beneficiary of a Letter of Credit to\n strictly comply with the conditions required in order to draw upon any\n Letter of Credit;\n\n (ix) any misapplication by the beneficiary of any Letter of\n Credit of the proceeds of any drawing under such Letter of Credit; or\n\n (x) any other circumstance or happening whatsoever, whether or\n not similar to the foregoing;\n\nprovided, that, notwithstanding the foregoing, the Issuing Bank shall not be\n-------- ---- \nrelieved of any liability it may otherwise have as a result of its gross\nnegligence or willful misconduct.\n\nSECTION 3.08 Increased Costs. (a) Change in Law. If, at any time after the \n --------------- ------------- \ndate of this Agreement, any change in any law or regulation or in the\ninterpretation thereof by any court or administrative or \n\n \ngovernmental authority charged with the administration thereof shall either (i)\nimpose, modify or deem applicable any reserve, special deposit or similar\nrequirement against letters of credit or guarantees issued by, or assets held by\nor deposits in or for the account of, the Issuing Bank or any LC Lender or (ii)\nimpose on the Issuing Bank or any LC Lender any other condition regarding this\nAgreement or the Letters of Credit or any collateral thereon, and the result of\nany event referred to in clause (i) or (ii) above shall be to increase the cost\nto the Issuing Bank or such LC Lender of issuing or maintaining, funding or\npurchasing participations in the Letters of Credit, then, upon demand by the\nIssuing Bank or such LC Lender (with a copy of such demand to the Agent), the\nBorrower shall pay to the Agent for the account of the Issuing Bank or such LC\nLender, from time to time as specified by the Issuing Bank or such LC Lender, \nadditional amounts sufficient to compensate the Issuing Bank or such LC Lender\nfor such increased cost; provided, that, the Borrower shall have no obligation\n -------- ---- \nto reimburse the Issuing Bank or any LC Lender for increased costs incurred more\nthan 60 days prior to the date of such demand. A certificate as to the amount of\nsuch increased cost setting forth the basis for the calculation of such\nincreased costs, submitted by the Issuing Bank or an LC Lender to the Borrower,\nshall be conclusive and binding for all purposes, absent manifest error.\n\n(b) Capital. If, at any time after the date of this Agreement, the Issuing\n ------- \nBank or LC Lender determines that compliance with any law or regulation or any\nguideline or request from any central bank or other governmental authority\n(whether or not having the force of law) affects or would affect the amount of\ncapital required or expected to be maintained by the Issuing Bank or such LC\nLender or any corporation controlling Issuing Bank or such LC Lender and that\nthe amount of such capital is increased by or based upon the existence of the\nIssuing Bank's or LC Lender's commitment hereunder and other commitments of this\ntype or the issuance of (or commitment to purchase of participations in) the\nLetters of Credit (or similar contingent obligations), then, upon demand by the\nIssuing Bank or such LC Lender (with a copy of such demand to the Agent), the\nBorrower shall pay to the Agent for the account of the Issuing Bank or such LC\nLender, from time to time as specified by the Issuing Bank or such LC Lender,\nadditional amounts sufficient to compensate the Issuing Bank or such LC Lender\nor such corporation in the light of such circumstances, to the extent that the\nIssuing Bank or such LC Lender reasonably determines such increase in capital to\nbe allocable to the existence of the Issuing Bank's or such LC Lender's\ncommitment hereunder; provided, that, the Borrower shall have no obligation to\n -------- ----\npay such compensatory amounts that relate to an actual increase in the capital\nof the Issuing Bank or such LC Lender undertaken by the Issuing Bank or such LC\nLender more than 60 days prior to the date of such demand. A certificate as to\nsuch amounts setting forth the basis for the calculation of such amount\nsubmitted to the Borrower and the Agent by the Issuing Bank or an LC Lender\nshall be conclusive and binding for all purposes, absent manifest error.\n\n(c) Without prejudice to the survival of any other agreement of the Borrower\nhereunder, the agreements and obligations of the Borrower contained in this\nSection 3.08 shall survive the payment in full (after the LC Termination Date)\nof all Obligations.\n\n(d) Without affecting its rights under Sections 3.08(a) or 3.08(b) or any other\nprovision of this Agreement, the Issuing Bank and each LC Lender agrees that if\nthere is any increase in any cost to or reduction in any amount receivable by\nthe Issuing Bank or LC Lender with respect to which the Borrower would be\nobligated to compensate such LC Lender pursuant to Sections 3.08(a) or 3.08(b),\nthe Issuing Bank or LC Lender shall use reasonable efforts to select an\nalternative issuing office or Applicable Lending Office, as the case may be,\nwhich would not result in any such increase in any cost to or reduction in any\namount receivable by the Issuing Bank or such LC Lender; provided, however, that\n -------- -------\nthe Issuing Bank and each LC Lender shall not be obligated to select an\nalternative issuing office or Applicable Lending Office if the Issuing Bank or\nsuch LC Lender determines that (i) as a result of such selection the Issuing\nBank or such LC Lender would be in violation of any applicable law, regulation,\ntreaty, or guideline, or would incur additional costs or expenses or (ii) such\nselection would be inadvisable for regulatory reasons or inconsistent with the\ninterests of the Issuing Bank or such LC Lender.\n\n \nSECTION 3.09 Uniform Customs and Practice. The Uniform Customs and Practice \n ---------------------------- \nfor Documentary Credits as most recently published by the International Chamber \nof Commerce (\"UCP\") shall in all respects be deemed a part of this Article III \n --- \nas if incorporated herein and shall apply to the Letters of Credit.\n\nSECTION 3.10 Reductions and Increases in LC Commitments. (a) The Borrower \n ------------------------------------------ \nshall have the right, upon at least three Business Days' notice to the Issuing\nBank and the Agent, to irrevocably terminate in whole or reduce in part the\nIssuing Bank's commitment to issue Letters of Credit as specified in Section\n3.01 (which reduction shall without further act reduce in whole or ratably in\npart the respective LC Commitments of the LC Lenders), provided, that, each\n -------- ---- \npartial reduction shall be in the aggregate amount of $25,000,000 or an integral\nmultiple of $1,000,000 in excess thereof and no such reduction shall reduce the\nLC Commitments below the then outstanding amount of Letter of Credit Liability.\n\n(b) Not more frequently than once in any period of twelve consecutive calendar\nmonths occurring after the date hereof, the Borrower shall have the right prior\nto the LC Termination Date to increase the amount of the Issuing Bank's\ncommitment to issue Letters of Credit and the amount of the LC Commitments of\none or more LC Lenders (each such increase being an \"LC Commitment Increase\"),\n ----------------------\nprovided that the Issuing Bank and such LC Lenders shall have consented to such\nLC Commitment Increase (which consent may be granted or withheld by the Issuing\nBank and any LC Lender in its sole and absolute discretion), on and subject to\nthe following terms:\n\n (i) The aggregate amount of all LC Commitment Increases and A\n Commitment Increases shall not exceed $200,000,000 after the date hereof;\n\n (ii) The aggregate amount of each LC Commitment Increase shall\n be in a minimum amount of $10,000,000 or an integral multiple of $1,000,000\n in excess thereof;\n\n (iii) Each LC Commitment Increase shall increase the amount of\n the Issuing Bank's commitment to issue Letters of Credit and the aggregate\n amount of the LC Commitments by the same amount;\n\n (iv) No proposed LC Commitment Increase shall occur unless each\n of the following requirements in respect thereof shall have been satisfied:\n\n (A) The Agent shall have received from the Borrower an\n irrevocable written notice (an \"LC Commitment Increase Notice\"), dated\n ----------------------------- \n not earlier than 60 days before the proposed LC Commitment Increase\n Effective Date (as defined below) therefor and not later than 30 days\n before such proposed LC Commitment Increase Effective Date, that (1)\n specifies (x) the aggregate amount of the proposed LC Commitment\n Increase, (y) the LC Lenders whose LC Commitments are to be increased\n by the proposed LC Commitment Increase and the amount by which each\n such LC Lender's LC Commitment is to be so increased and (z) the date\n (the \"LC Commitment Increase Effective Date\") on which the proposed LC\n ------------------------------------- \n Commitment Increase shall become effective, and (2) has been signed by\n the Issuing Bank and each LC Lender whose LC Commitment is to be\n increased, evidencing the consent of the Issuing Bank and such LC\n Lender to the proposed LC Commitment Increase;\n\n (B) On and as of the LC Commitment Increase Effective Date\n of the proposed LC Commitment Increase (1) the following statements\n shall be true (and the giving of the applicable LC Commitment Increase\n Notice shall constitute a representation and warranty by the Borrower\n that on such LC Commitment Increase Effective Date such statements are\n true):\n\n \n (x) The representations and warranties contained in\n Section 6.01 are correct on and as of such LC Commitment\n Increase Effective Date before and after giving effect to\n the proposed LC Commitment Increase, as though made on and\n as of such date, and\n\n (y) No event has occurred and is continuing, or would\n result from such LC Commitment Increase, which constitutes\n an Event of Default or Default; and\n\n (2) the Agent shall have received such other approvals, opinions or\n documents as the Agent may reasonably request;\n\n (v) Promptly following its receipt of an LC Commitment Increase\n Notice in proper form, the Agent shall deliver copies thereof to the\n Issuing Bank and each LC Lender. If, and only if, all of the terms,\n conditions and requirements specified in paragraphs (i) through (iv) are\n satisfied in respect of any proposed LC Commitment on and as of the\n proposed LC Commitment Increase Effective Date thereof, then, as of such LC\n Commitment Increase Effective Date and from and after such date, (1) the\n amount of the Issuing Bank's commitment to issue Letters of Credit shall be\n increased by the amount of the proposed LC Commitment Increase and the LC\n Commitments of the LC Lenders consenting to such LC Commitment Increase\n shall be increased by the respective amounts specified in the LC Commitment\n Increase Notice pertaining thereto and (2) references herein to the amount\n of the Issuing Bank's commitment to issue Letters of Credit and to the\n amounts of the LC Lenders' respective LC Commitments shall refer to\n respective amounts giving effect to such LC Commitment Increase; and\n\n (vi) It is understood that neither the Issuing Bank nor any LC\n Lender shall have any obligation whatsoever to agree to any request made by\n the Borrower for an LC Commitment Increase.\n\nSECTION 3.11 Existing Letters of Credit. The Issuing Bank currently has\n -------------------------- \noutstanding documentary and trade letters of credit issued pursuant to the\nOriginal Agreement (the \"Existing Letters of Credit\") the outstanding balance of\n -------------------------- \nwhich is set forth on Schedule IV hereto. From and after the date hereof and\nupon fulfillment of the conditions to initial Issuance specified in Section 5.01\nhereof, each such Existing Letter of Credit shall be deemed and treated for all\npurposes hereof (including, without limitation, the calculation of fees payable\nunder Section 3.06, and calculating the usage of the Issuing Bank's commitment\nunder Section 3.01) as a \"Letter of Credit\" hereunder, any participation\n ---------------- \ninterest existing prior to the date hereof of any LC Lender in such Existing\nLetters of Credit shall, without further action on its part, be deemed\nextinguished in full and each LC Lender, without further act on its part, shall\nbe deemed to have purchased a participation in each such Existing Letter of\nCredit as provided in Section 3.05 hereof in accordance with its LC Commitment\nPercentage.\n\nSECTION 3.12 Extension of LC Termination Date. At least 30 but not more than \n -------------------------------- \n45 days prior to the LC Termination Date, the Borrower, by written notice to the\nAgent, may request that the LC Termination Date be extended for a period of 364\ndays from its then current scheduled expiration. The Agent shall promptly notify\nthe Issuing Bank and each LC Lender of such request, and the Issuing Bank and\neach LC Lender shall in turn, within 20 days prior to such LC Termination Date,\nnotify the Borrower and the Agent in writing regarding whether the Issuing Bank\nor such LC Lender (as the case may be) will consent to such extension. If, and\nonly if, (i) the Majority LC Lenders and the Issuing Bank consent in writing to\nsuch extension prior to the tenth day preceding such LC Termination Date and\n(ii) the Majority A Lenders consent to an \n\n \nextension of the Revolving Termination Date pursuant to Section 2.14, the LC\nTermination Date shall be so extended for such 364-day period and references\nherein to the \"LC Termination Date\" shall refer to such \"LC Termination Date\"\n ------------------- -------------------\nas so extended. If the Issuing Bank or any LC Lender shall fail to deliver such\nnotice to the Borrower and the Agent as provided above, the Issuing Bank or such\nLC Lender shall be deemed not to have consented to such requested extension and\nthe Issuing Bank's and such LC Lender's LC Commitment shall terminate on the\nscheduled LC Termination Date (each such non-extending LC Lender being a \"Non-\n ---\nExtending LC Lender\"); provided, that the obligations of any Non-Extending LC\n-------------------- -------- \nLender under Section 3.05(e) shall remain in effect as provided therein as to\nLetters of Credit Issued on or before the LC Termination Date in effect prior to\nsuch extension. It is understood that neither the Issuing Bank nor any LC\nLender shall have any obligation whatsoever to agree to any request made by the\nBorrower for an extension of the LC Termination Date.\n\nSECTION 3.13 Currency Provisions. (a) Equivalents.\n \nFor purposes of the provisions of this Article III, (i) the equivalent in\nDollars of any Alternative Currency shall be determined by using the mean of the\nbid and offer quoted spot rates at which the Issuing Bank's principal office in\nNew York, New York offers to exchange Dollars for such Alternative Currency in\nNew York, New York at 11:00 A.M. (New York City time) on the Business Day on\nwhich such equivalent is to be determined and (ii) the equivalent in any\nAlternative Currency of Dollars shall be determined by using the mean of the bid\nand offer quoted spot rates at which the Issuing Bank's principal office in New\nYork, New York offers to exchange such Alternative Currency for Dollars in New\nYork, New York at 11:00 A.M. (New York City time) on the Business Day on which\nsuch equivalent is to be determined.\n\n(b) Issuing Bank's Commitment\/LC Commitments. For purposes of determining the\n ---------------------------------------- \nunused portion of the Issuing Bank's commitment specified in Section 3.01 and of\neach LC Lender's LC Commitment, the equivalent in Dollars of each Letter of\nCredit issued by the Issuing Bank in an Alternative Currency as determined on\nthe date of the Issuance of such Letter of Credit shall be the amount of the\nIssuing Bank's commitment used in connection with the Issuance of such Letter of\nCredit and the resulting proportionate amount of each LC Lender's LC Commitment\nused, such reduction to be calculated in accordance with its LC Commitment\nPercentage. Further adjustments shall be made with respect to the unused portion\nof the Issuing Bank's commitment to Issue Letters of Credit and each such LC\nLender's LC Commitment based upon fluctuations thereafter in the value of the\nAlternative Currency of such Letter of Credit as provided in subsection (c)\nbelow.\n\n(c) Mark to Market. If, on any day, the equivalent in Dollars of the aggregate\n -------------- \nface amount of all Letters of Credit then outstanding (less the aggregate amount\nof cash collateral held by the Issuing Bank with respect to outstanding Letters\nof Credit) exceeds the total of the LC Commitments, the Borrower shall, upon\ndemand by the Agent, immediately pay to the Issuing Bank, in Dollars, (i) the\nDollar amount of such excess plus (ii) a Dollar amount equal to the lesser of\n(A) $1,000,000 and (B) 10% of the Dollar equivalent of all then existing Letter\nof Credit Liability relating to Letters of Credit denominated in Alternative\nCurrencies, which amount shall be held by the Issuing Bank as cash collateral\nfor its obligations with respect to outstanding Letters of Credit. Concurrently\nwith such payment, the Borrower shall enter into a cash collateral agreement\nwith the Issuing Bank in form and substance satisfactory to the Issuing Bank.\nAmounts on deposit with the Issuing Bank as cash collateral shall be invested in\nCash Equivalents as directed by the Borrower and shall (so long as no Default\nhas occurred and is continuing) be released (1) if the LC Termination Date has\nnot occurred, on the date on which the aggregate of all Letter of Credit\nLiability does not exceed 99% of the aggregate amount of the LC Commitments then\nin effect (without regard to any usage thereof) or (2) if the LC Termination\nDate has occurred, on the first day after the LC Termination Date on which no\nLetter of Credit Liability or Letters of Credit are outstanding.\n\n(d) Monthly Report. The Issuing Bank, on the last Business Day of each month\n -------------- \nuntil the LC Termination Date, shall calculate the Letter of Credit Liability on\nsuch date (converting any amounts of the Letter of\n\n \nCredit Liability which are denominated in an Alternative Currency to Dollars for\npurposes of such calculation) and shall promptly send notice of (i) such Letter\nof Credit Liability and (ii) the Dollar amount of any excess of Letter Credit\nLiability over total LC Commitments to the Borrower and to each LC Lender, and\nthe Borrower shall promptly upon receipt thereof make the payments provided for\nin subsection (c) above if applicable.\n\nSECTION 3.14 Subsidiary Guaranty. (a) Generally. The Issuing Bank may, from \n ------------------- --------- \ntime to time, Issue Letters of Credit for the account of each LC Subsidiary\nprovided, that, the reimbursement and other obligations of each such LC\n-------- ---- \nSubsidiary are and remain unconditionally guaranteed by the Borrower pursuant to\nthis Section 3.14.\n\n(b) Guaranty. The Borrower hereby unconditionally guarantees the punctual\n -------- \npayment when due, whether at stated maturity, by acceleration or otherwise, of\nall obligations of the LC Subsidiaries now or hereafter existing under this\nAgreement with respect to Letters of Credit issued for the account of any of the\nLC Subsidiaries, including any extensions, modifications, substitutions,\namendments and renewals thereof, whether for reimbursement obligations,\ninterest, fees, expenses or otherwise (such obligations being the \"Subsidiary\n ----------\nObligations\"), and agrees to pay any and all expenses (including counsel fees\n-----------\nand expenses) incurred by the Issuing Bank or the LC Lenders in enforcing any\nrights hereunder with respect to the Subsidiary Obligations. Without limiting\nthe generality of the foregoing, the Borrower's liability shall extend to all\namounts which constitute part of the Subsidiary Obligations and would be owed by\nany LC Subsidiary to the Issuing Bank or the LC Lenders hereunder, or under the\nLetters of Credit issued for the account of an LC Subsidiary, but for the fact\nthat they are unenforceable or not allowable due to the existence of a\nbankruptcy, reorganization or similar proceeding involving such LC Subsidiary.\n\n(c) Guaranty Absolute. The Borrower guarantees that the Subsidiary Obligations\n ----------------- \nwill be paid strictly in accordance with the terms hereof regardless of any law,\nregulation or order now or hereafter in effect in any jurisdiction affecting any\nof such terms or the rights of the Issuing Bank or the LC Lenders with respect\nthereto. The obligations of the Borrower hereunder are independent of the\nSubsidiary Obligations and a separate action or actions may be brought and\nprosecuted against the Borrower to enforce the guaranty contained in this\nSection 3.14, irrespective of whether any action is brought against any LC\nSubsidiary or whether any LC Subsidiary is joined in any such action or actions.\nThe liability of the Borrower under the guaranty contained in this Section 3.14\nshall be absolute and unconditional irrespective of:\n\n (i) any lack of validity or enforceability of any of the\n Subsidiary Obligations or any agreement or instrument relating\n thereto;\n\n (ii) any change in the time, manner or place of payment of, or\n in any other term of, all or any of the Subsidiary Obligations, or any\n other amendment or waiver of or any consent to departure herefrom with\n respect to Letters of Credit issued for the account of an LC\n Subsidiary including, without limitation, any increase in the\n Subsidiary Obligations resulting from the Issuance of Letters of\n Credit beyond the aggregate limitation specified in Section 3.01 to\n any and all LC Subsidiaries or otherwise;\n\n (iii) any taking, exchange, release or non-perfection of any\n collateral, or any taking, release or amendment or waiver of or\n consent to departure from any other guaranty, for all or any of the\n Subsidiary Obligations;\n\n (iv) any manner of application of collateral, or proceeds\n thereof, to all or any of the Subsidiary Obligations, or any manner of\n sale or other disposition of any collateral for all or any of the\n Subsidiary Obligations or any other assets of an LC Subsidiary;\n\n \n (v) any change, restructuring or termination of the corporate\n structure or existence of an LC Subsidiary or any LC Subsidiary's lack\n of corporate power or authority; or\n\n (vi) any other circumstance which might otherwise constitute a\n defense available to, or a discharge of, a third party guarantor.\n\nThe guaranty provided in this Section 3.14 shall continue to be effective or be\nreinstated, as the case may be, if at any time any payment of any of the\nSubsidiary Obligations is rescinded or must otherwise be returned by the Issuing\nBank or any LC Lender upon the insolvency, bankruptcy or reorganization of an LC\nSubsidiary or otherwise, all as though such payment had not been made.\n\n(d) Waivers. The Borrower hereby waives, to the extent permitted by applicable\n ------- \nlaw:\n\n (i) any requirement that the Issuing Bank or any LC Lender\n secure or insure any security interest or lien or any property subject\n thereto or exhaust any right or take any action against any LC\n Subsidiary or any other Person or any collateral;\n\n (ii) any defense arising by reason of any claim or defense\n based upon an election of remedies by the Issuing Bank or any LC\n Lender (including, without limitation, an election to nonjudicially\n foreclose on any real or personal property collateral) which in any\n manner impairs, reduces, releases or otherwise adversely affects its\n subrogation, reimbursement or contribution rights or other rights to\n proceed against any LC Subsidiary or any other Person or any\n collateral;\n\n (iii) any defense arising by reason of the failure of any LC\n Subsidiary to properly execute any letter of credit application and\n agreement or otherwise comply with applicable legal formalities;\n\n (iv) any defense or benefits that may be derived from\n California Civil Code (S)(S) 2808, 2809, 2810, 2819, 2845 or 2850, or\n California Code of Civil Procedure (S)(S) 580a, 580d or 726, or\n comparable provisions of the laws of any other jurisdiction and all\n other suretyship defenses it would otherwise have under the laws of\n California or any other jurisdiction;\n\n (v) any duty on the part of the Issuing Bank or any LC\n Lender to disclose to the Borrower any matter, fact or thing relating\n to the business, operation or condition of any LC Subsidiary and its\n respective assets now known or hereafter known by the Issuing Bank or\n any LC Lender;\n\n (vi) all benefits of any statute of limitations affecting the\n Borrower's liability under or the enforcement of the guaranty provided\n in this Section 3.14 or any of the Subsidiary Obligations or any\n collateral;\n\n (vii) all setoffs and counterclaims;\n\n (viii) promptness, diligence, presentment, demand for\n performance and protest;\n\n (ix) notice of nonperformance, default, acceleration, protest\n or dishonor;\n\n \n (x) except for any notice otherwise required by applicable laws\n that may not be effectively waived by the Borrower, notice of sale or\n other disposition of any collateral; and\n\n (xi) notice of acceptance of the guaranty provided in this\n Section 3.14 and of the existence, creation or incurring of new or\n additional Subsidiary Obligations.\n\nSECTION 3.15 Dollar Payment Obligation. Notwithstanding any other term or\n ------------------------- \nprovision hereof to the contrary, if the Borrower or any LC Subsidiary fails to\nreimburse the Issuing Bank for any payment made by the Issuing Bank under a\nLetter of Credit denominated in an Alternative Currency by the close of business\non the Business Day when due at the Payment Office specified for such\nreimbursement payment, then the payment made by the Issuing Bank in such\nAlternative Currency shall be converted into Dollars (the \"Dollar Payment\n --------------\nAmount\") by the Issuing Bank as provided for herein, and each of the Borrower\n------\nand each LC Subsidiary for whose account such Letter of Credit was Issued agrees\nthat it shall be unconditionally obligated to, and shall immediately, reimburse\nthe Issuing Bank the Dollar Payment Amount at the Issuing Bank's then Payment\nOffice for Dollars.\n\nSECTION 3.16 Applications. This Agreement shall control over any provision of\n ------------ \nany application and agreement for Letters of Credit to the contrary, but\nadditive or supplemental provisions of any such application and agreement shall\napply to each Letter of Credit Issued pursuant to such application and\nagreement.\n\nSECTION 3.17 LC Subsidiaries. Any Subsidiary of the Borrower not an LC\n --------------- \nSubsidiary on the date hereof may become an \"LC Subsidiary\" hereunder by\ndelivering to the Issuing Bank (which shall promptly forward a copy thereof to\neach LC Lender and the Agent) an agreement, in form and substance satisfactory\nto the Issuing Bank, wherein such Subsidiary agrees to be bound by all terms and\nprovisions of this Agreement relating to Letters of Credit to be issued for the\naccount of such Subsidiary and delivers a written consent of the Borrower\nassenting to the inclusion of such Subsidiary as an \"LC Subsidiary\" hereunder.\nUnless objected to by the Majority LC Lenders within the 10 day period referred\nto below, such Subsidiary shall become an \"LC Subsidiary\" hereunder 10 days\nafter the Issuing Bank notifies the Borrower that such agreement and consent are\nin form and substance satisfactory to it; provided, that, no Subsidiary shall\n -------- ---- \nbecome an \"LC Subsidiary\" until the Issuing Bank shall have notified the\nBorrower in writing that such agreement and consent are in form and substance\nsatisfactory to the Issuing Bank.\n\n ARTICLE IV\n PAYMENTS, TAXES, EXTENSIONS, ETC.\n\nSECTION 4.01 Payments and Computations\/Borrowings. (a) The Borrower shall\n ------------------------------------ \nmake each payment hereunder with respect to Article II, the A Advances, the A\nLenders, the B Advances and the Agent free and clear of all claims, charges,\noffsets or deductions whatsoever not later than 12:00 noon (New York City time)\non the day when due in U.S. dollars to the Agent (unless otherwise specified in\nSection 2.03 with respect to the B Advances) at its address referred to in\nSection 10.02 in same day funds. The Agent will promptly thereafter cause to be\ndistributed like funds relating to the payment of principal or interest or\nfacility or utilization fees ratably (other than amounts payable pursuant to\nSection 2.03, 2.05(b), 2.08, 2.12, 2.14 or 4.02) to the A Lenders for the\naccount of their respective Applicable Lending Offices, and like funds relating\nto the payment of any other amount payable to such A Lender to be distributed to\nthe appropriate A Lender or A Lenders and applied in accordance with the terms\nof this Agreement. Upon its acceptance of an Assignment and Acceptance and\nrecording of the information contained therein in the Register pursuant to\nSection 10.07(d), from and after the effective date specified in such Assignment\nand Acceptance, the Agent shall make all payments hereunder in respect of the\ninterest assigned thereby to the A Lender assignee thereunder, and the parties\nto such Assignment and Acceptance shall make all appropriate adjustments in such\npayments for periods prior to such effective date directly between themselves.\n\n \n(b) The Borrower and each LC Subsidiary hereby authorize the Agent and each A\nLender if and to the extent payment owed to the Agent or such A Lender is not\npaid when due hereunder to charge from time to time against any or all of the\nBorrower's or such LC Subsidiary's accounts with the Agent or such A Lender any\namount so due.\n\n(c) All computations of interest based on the Base Rate and of facility fees\nshall be made by the Agent on the basis of a year of 365 or 366 days, as the\ncase may be, and all computations of interest relating to utilization fees,\nfixed rates of interest on B Advances or based on the Eurodollar Rate or the\nFederal Funds Rate shall be made by the Agent, and all computations of interest\npursuant to Section 2.08 shall be made by an A Lender, on the basis of a year of\n360 days, in each case for the actual number of days (including the first day\nbut excluding the last day) occurring in the period for which such interest or\nfees are payable. Each determination by the Agent (or, in the case of Section\n2.08, by an A Lender) of an interest rate hereunder shall be conclusive and\nbinding for all purposes, absent manifest error.\n\n(d) Whenever any payment hereunder shall be stated to be due on a day other\nthan a Business Day, such payment shall be made on the next succeeding Business\nDay, and such extension of time shall in such case be included in the\ncomputation of payment of interest or facility or utilization fee, as the case\nmay be; provided, however, if such extension would cause payment of interest on\n -------- ------- \nor principal of Eurodollar Rate Advances to be made in the next following\ncalendar month, such payment shall be made on the next preceding Business Day.\n\n(e) Unless the Agent shall have received notice from the Borrower prior to the\ndate on which any payment is due to the A Lender or A Lenders hereunder that the\nBorrower will not make such payment in full, the Agent may assume that the\nBorrower has made such payment in full to the Agent on such date and the Agent\nmay, in reliance upon such assumption, cause to be distributed to such A Lender\nor A Lenders on such due date an amount equal to the amount then due such A\nLender or A Lenders. If and to the extent that the Borrower shall not have so\nmade such payment in full to the Agent, each such A Lender shall repay to the\nAgent forthwith on demand such amount distributed to such A Lender together with\ninterest thereon, for each day from the date such amount is distributed to such\nA Lender until the date such A Lender repays such amount to the Agent, at the\nFederal Funds Rate.\n\nSECTION 4.02 Taxes\/Borrowings. (a) Any and all payments by the Borrower\n ---------------- \nhereunder shall be made free and clear of and without deduction for any and all\npresent or future taxes, levies, imposts, deductions, charges or withholdings,\nand all liabilities with respect thereto, excluding, in the case of each A\n --------- \nLender, LC Lender, the Issuing Bank and the Agent, taxes imposed on its income,\nand franchise taxes imposed on it, by the jurisdiction under the laws of which\nsuch A Lender, LC Lender, the Issuing Bank or the Agent (as the case may be) is\norganized or any political subdivision thereof and, in the case of each A Lender\nor LC Lender (as the case may be), taxes imposed on its income, and franchise\ntaxes imposed on it, by the jurisdiction of such A Lender's or LC Lender's (as\nthe case may be) Applicable Lending Office or any political subdivision thereof\n(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings\nand liabilities being hereinafter referred to as \"Taxes\"). If the Borrower\n ------ \nshall be required by law to deduct any Taxes from or in respect of any sum\npayable hereunder to any A Lender or the Agent, (i) the sum payable shall be\nincreased as may be necessary so that after making all required deductions\n(including deductions applicable to additional sums payable under this Section\n4.02) such A Lender or the Agent (as the case may be) receives an amount equal\nto the sum it would have received had no such deductions been made, (ii) the\nBorrower shall make such deductions and (iii) the Borrower shall pay the full\namount deducted to the relevant taxation authority or other authority in\naccordance with applicable law.\n\n(b) In addition, the Borrower agrees to pay any present or future stamp or\ndocumentary taxes or any other excise or property taxes, charges or similar\nlevies which arise from any payment made hereunder or from the execution,\ndelivery or registration of, or otherwise with respect to, this Agreement or the\nLetters of Credit (hereinafter referred to as \"Other Taxes\").\n ------------ \n\n(c) The Borrower will reimburse each A Lender and the Agent for the full amount\nof Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes\nimposed by any jurisdiction on amounts payable\n\n \nunder this Section 4.02) paid by such A Lender or the Agent (as the case may be)\nand any liability (including penalties, interest and expenses) arising therefrom\nor with respect thereto, whether or not such Taxes or Other Taxes were correctly\nor legally asserted. This reimbursement shall be made within 30 days from the\ndate such A Lender or the Agent (as the case may be) makes written demand\ntherefor. The Agent and each A Lender, as the case may be, shall give prompt\n(within 10 Business Days) notice to the Borrower of the payment by the Agent or\nsuch A Lender, as the case may be, of such Taxes or Other Taxes, and of the\nassertion by any governmental or taxing authority that such Taxes or Other Taxes\nare due and payable, but the failure to give such notice shall not affect the\nBorrower's obligations hereunder to reimburse the Agent and each A Lender for\nsuch Taxes or Other Taxes, except that the Borrower shall not be liable for\npenalties or interest accrued or incurred after such 10 Business Day period\nuntil such time as it receives the notice contemplated above, after which time\nit shall be liable for interest and penalties accrued or incurred prior to or\nduring such 10 Business Day period and accrued or incurred after such receipt.\nThe Borrower shall not be liable for any penalties, interest, expense or other\nliability with respect to such Taxes or Other Taxes after it has reimbursed the\namount thereof to the Agent or the appropriate A Lender, as the case may be.\n\n(d) Each A Lender organized under the laws of a jurisdiction outside the United\nStates, on or prior to the date of its execution and delivery of this Agreement\nin the case of each Lender and on the date of the Assignment and Acceptance\npursuant to which it becomes an A Lender in the case of each other A Lender, and\nfrom time to time thereafter if requested in writing by the Borrower (but only\nso long as such A Lender remains lawfully able to do so), shall provide the\nBorrower with Internal Revenue Service form 1001 or 4224, as appropriate, or any\nsuccessor form prescribed by the Internal Revenue Service, certifying that such\nA Lender is entitled to benefits under an income tax treaty to which the United\nStates is a party which reduces the rate of withholding tax on payments of\ninterest or certifying that the income receivable pursuant to this Agreement is\neffectively connected with the conduct of a trade or business in the United\nStates. If the form provided by an A Lender at the time such A Lender first\nbecomes a party to this Agreement indicates a United States interest withholding\ntax rate in excess of zero, withholding tax at such rate shall be considered\nexcluded from \"Taxes\" as defined in Section 4.02(a).\n -----\n\n(e) For any period with respect to which an A Lender has failed to provide the\nBorrower with the appropriate form described in Section 4.02(d) (other than\n ----- ----\nif such failure is due to a change in law occurring subsequent to the date on\nwhich a form originally was required to be provided, or if such form otherwise\nis not required under the first sentence of subsection (d) above), such A Lender\nshall not be entitled to indemnification under Section 4.02(a) with respect to\nTaxes imposed by the United States; provided, however, that should an A Lender\n -------- -------\nbecome subject to Taxes because of its failure to deliver a form required\nhereunder, the Borrower shall take such steps as the A Lender shall reasonably\nrequest to assist the A Lender to recover such Taxes.\n\n(f) Notwithstanding any contrary provisions of this Agreement, in the event\nthat an A Lender that originally provided such form as may be required under\nSection 4.02(d) thereafter ceases to qualify for complete exemption from United\nStates withholding tax, such A Lender may assign its interest under this\nAgreement to any assignee and such assignee shall be entitled to the same\nbenefits under this Section 4.02 as the assignor provided, that, the rate of\n -------- ---- \nUnited States withholding tax applicable to such assignee shall not exceed the\nrate then applicable to the assignor.\n\n(g) Without affecting its rights under this Section 4.02 or any provision of\nthis Agreement, each A Lender agrees that if any Taxes or Other Taxes are\nimposed and required by law to be paid or to be withheld from any amount payable\nto any A Lender or its Applicable Lending Office with respect to which the\nBorrower would be obligated pursuant to this Section 4.02 to increase any\namounts payable to such A Lender or to pay any such Taxes or Other Taxes, such A\nLender shall use reasonable efforts to select an alternative Applicable Lending\nOffice which would not result in the imposition of such Taxes or Other Taxes;\nprovided, however, that no A Lender shall be obligated to select an alternative\n-------- ------- \nApplicable Lending Office if such A Lender determines that (i) as a result of\nsuch selection such A Lender would be in violation of an \n\n \napplicable law, regulation, or treaty, or would incur additional costs or\nexpenses or (ii) such selection would be inadvisable for regulatory reasons or\ninconsistent with the interests of such A Lender.\n\n(h) Each A Lender agrees with the Borrower that it will take all reasonable\nactions by all usual means (i) to secure and maintain all benefits available to\nit under the provisions of any applicable double tax treaty concluded by the\nUnited States of America to which it may be entitled by reason of the location\nof such A Lender's Applicable Lending Office or place of incorporation or its\nstatus as an enterprise of any jurisdiction having any such applicable double\ntax treaty, if such benefit would reduce the amount payable by the Borrower in\naccordance with this Section 4.02 and (ii) otherwise to cooperate with the\nBorrower to minimize the amount payable by the Borrower pursuant to this Section\n4.02; provided, however, that no A Lender shall be obliged to disclose to the\n -------- ------- \nBorrower any information regarding its tax affairs or tax computations nor to\nreorder its tax affairs or tax planning pursuant hereto.\n\n(i) Without prejudice to the survival of any other agreement of the Borrower\nhereunder, the agreements and obligations of the Borrower contained in this\nSection 4.02 shall survive the payment in full of the Obligations.\n\nSECTION 4.03 Sharing of Payments, Etc.\/Borrowings. If any A Lender shall\n ------------------------------------ \nobtain any payment (whether voluntary, involuntary, through the exercise of any\nright of set-off, or otherwise) on account of the A Advances made by it (other\nthan pursuant to Section 2.05(b), 2.08, 2.12, 2.14 or 4.02) in excess of its\nratable share of payments on account of the A Advances obtained by all the A\nLenders, such A Lender shall forthwith purchase from the other A Lenders such\nparticipations in the A Advances made by them as shall be necessary to cause\nsuch purchasing A Lender to share the excess payment ratably with each of them,\nprovided, however, that if all or any portion of such excess payment is\n-------- ------- \nthereafter recovered from such purchasing A Lender, such purchase from each A\nLender shall be rescinded and such A Lender shall repay to the purchasing A\nLender the purchase price to the extent of such recovery together with an amount\nequal to such A Lender's ratable share (according to the proportion of (i) the\namount of such A Lender's required repayment to (ii) the total amount so\nrecovered from the purchasing A Lender) of any interest or other amount paid or\npayable by the purchasing A Lender in respect of the total amount so recovered.\nThe Borrower agrees that any A Lender so purchasing a participation from another\nA Lender pursuant to this Section 4.03 may, to the fullest extent permitted by\nlaw, exercise all its rights of payment (including the right of set-off) with\nrespect to such participation as fully as if such A Lender were the direct\ncreditor of the Borrower in the amount of such participation.\n\nSECTION 4.04 Evidence of Debt\/Borrowings. (a) Each A Lender shall maintain in\n --------------------------- \naccordance with its usual practice an account or accounts evidencing the\nindebtedness of the Borrower to such A Lender resulting from each Advance owing\nto such A Lender from time to time, including the amounts of principal and\ninterest payable and paid to such A Lender from time to time hereunder.\n\n(b) The Register maintained by the Agent pursuant to Section 10.07(c) shall\ninclude a control account, and a subsidiary account for each A Lender, in which\naccounts (taken together) shall be recorded (i) the date and amount of each A\nBorrowing made hereunder, the Type of Advances comprising such A Borrowing and\nthe Interest Period applicable thereto, (ii) the terms of each Assignment and\nAcceptance delivered to and accepted by it, (iii) the amount of any principal or\ninterest due and payable or to become due and payable from the Borrower to each\nA Lender hereunder, and (iv) the amount of any sum received by the Agent from\nthe Borrower hereunder and each A Lender's share thereof.\n\n(c) The entries made in the Register shall be conclusive and binding for all\npurposes, absent manifest error.\n\nSECTION 4.05 Payments and Computations\/Letters of Credit. (a) The Borrower\n ------------------------------------------- \nand each LC Subsidiary, as the case may be, shall make each payment with respect\nto the Letters of Credit, the Issuing Bank or the LC Lenders to be made by it\nfree and clear of all claims, charges, offsets or deductions whatsoever not\nlater than (i) if such payment relates to letter of credit facility fees or\namounts (other than reimbursements for payments in an Alternative Currency made\nunder Letters of Credit) or if such payment relates to a Letter of Credit\ndenominated in Dollars, 12:00 noon (New York City time) on the day when due in\nDollars to the Issuing Bank at its address referred to in Section 10.02 in same\nday funds and (ii) if such payment relates to \n\n \nreimbursement of a Letter of Credit denominated in an Alternative Currency, (A)\nin such Alternative Currency, at the Issuing Bank's Payment Office therefor so\nlong as such payment is made by the close of business on the Business Day when\ndue and (B) thereafter in Dollars (at the then Dollar equivalent of the amount\ndue on such preceding Business Day), by 12:00 noon (New York City time) to the\nIssuing Bank at its address referred to in Section 10.02 in same day funds as\nprovided in Section 3.15 above. The Issuing Bank will promptly thereafter (if\namounts are owed to the LC Lenders by the terms hereof) cause to be distributed\nlike funds relating to the payment of reimbursement obligations or letter of\ncredit facility fees ratably (other than amounts payable pursuant to Section\n3.04(a), 3.08, or 4.06) to the LC Lenders for the account of their respective\nApplicable Lending Offices, and like funds relating to the payment of any other\namount payable to the Issuing Bank or to such LC Lender to be distributed to the\nappropriate LC Lender or LC Lenders and applied in accordance with the terms of\nthis Agreement. Upon the Agent's acceptance of an Assignment and Acceptance and\nrecording of the information contained therein in the Register pursuant to\nSection 10.07(d), from and after the effective date specified in such Assignment\nand Acceptance, the Issuing Bank shall make all payments hereunder in respect of\nthe interest assigned thereby to the LC Lender assignee thereunder, and the\nparties to such Assignment and Acceptance shall make all appropriate adjustments\nin such payments for periods prior to such effective date directly between\nthemselves.\n\n(b) The Borrower and each LC Subsidiary hereby authorize each LC Lender and the\nIssuing Bank, if and to the extent payment owed to such LC Lender or the Issuing\nBank (including the immediate repayments of participations purchased and funded\nby an LC Lender pursuant to Section 3.05) is not paid when due hereunder to\ncharge from time to time against any or all of the Borrower's or such LC\nSubsidiary's accounts with such LC Lender or Issuing Bank any amount so due.\n\n(c) All computations of interest based on the Base Rate and of letter of credit\nfacility fees shall be made by the Issuing Bank on the basis of a year of 365 or\n366 days, as the case may be, and all computations of interest based on the\nFederal Funds Rate shall be made by the Issuing Bank on the basis of a year of\n360 days, in each case for the actual number of days (including the first day\nbut excluding the last day) occurring in the period for which such interest or\nletter of credit facility fees are payable. Each determination by the Issuing\nBank of an interest rate hereunder shall be conclusive and binding for all\npurposes, absent manifest error.\n\n(d) Whenever any payment hereunder shall be stated to be due on a day other\nthan a Business Day, such payment shall be made on the next succeeding Business\nDay, and such extension of time shall in such case be included in the\ncomputation of payment of interest or letter of credit facility fee, as the case\nmay be.\n\n(e) Unless the Issuing Bank shall have received notice from the Borrower or an\nLC Subsidiary prior to the date on which any payment is due to the Issuing Bank\nor LC Lenders hereunder that the Borrower or such LC Subsidiary will not make\nsuch payment in full, the Issuing Bank may assume that the Borrower or such LC\nSubsidiary has made such payment in full to the Issuing Bank on such date and\nthe Issuing Bank may, in reliance upon such assumption, cause to be distributed\nto such LC Lender or LC Lenders on such due date an amount equal to the amount\nthen due such LC Lender or LC Lenders. If and to the extent that the Borrower or\nsuch LC Subsidiary shall not have so made such payment in full to the Issuing\nBank, each such LC Lender shall repay to the Issuing Bank forthwith on demand\nsuch amount distributed to such LC Lender together with interest thereon, for\neach day from the date such amount is distributed to such LC Lender until the\ndate such LC Lender repays such amount to the Issuing Bank, at the Federal Funds\nRate.\n\nSECTION 4.06 Taxes\/Letters of Credit. (a) Any and all payments by the\n ----------------------- \nBorrower and each LC Subsidiary hereunder with respect to the Letters of Credit\nshall be made free and clear of and without deduction for any and all present or\nfuture Taxes. If the Borrower or any LC Subsidiary shall be required by law to\ndeduct any Taxes from or in respect of any sum payable hereunder to any LC\nLender or the Issuing Bank, (i) the sum payable shall be increased as may be\nnecessary so that after making all required deductions (including deductions\napplicable to additional sums payable under this Section 4.06) such LC Lender or\nthe Issuing Bank (as the case may be) receives an amount equal to the sum it\nwould have received had no such deductions been made, (ii) the Borrower or such\nLC Subsidiary shall make such deductions and (iii) the \n\n \nBorrower or the appropriate LC Subsidiary shall pay the full amount deducted to\nthe relevant taxation authority or other authority in accordance with applicable\nlaw.\n\n(b) The Borrower or the appropriate LC Subsidiary will reimburse each LC Lender\nand the Issuing Bank for the full amount of Taxes or Other Taxes (including,\nwithout limitation, any Taxes or Other Taxes imposed by any jurisdiction on\namounts payable under this Section 4.06) paid by such LC Lender or the Issuing\nBank (as the case may be) and any liability (including penalties, interest and\nexpenses) arising therefrom or with respect thereto, whether or not such Taxes\nor Other Taxes were correctly or legally asserted. This reimbursement shall be\nmade within 30 days from the date such LC Lender or the Issuing Bank (as the\ncase may be) makes written demand therefor. The Issuing Bank and each LC Lender,\nas the case may be, shall give prompt (within 10 Business Days) notice to the\nBorrower of the payment by the Issuing Bank or such LC Lender, as the case may\nbe, of such Taxes or other Taxes, and of the assertion by any governmental or\ntaxing authority that such Taxes or Other Taxes are due and payable, but the\nfailure to give such notice shall not affect the Borrower's or any LC\nSubsidiary's obligations hereunder to reimburse the Issuing Bank and each LC\nLender for such Taxes or Other Taxes, except that neither the Borrower nor any\nLC Subsidiary shall be liable for penalties or interest accrued or incurred\nafter such 10 Business Day period until such time as the Borrower receives the\nnotice contemplated above, after which time it shall be liable for interest and\npenalties accrued or incurred prior to or during such 10 Business Day period and\naccrued or incurred after such receipt. Neither the Borrower nor any LC\nSubsidiary shall be liable for any penalties, interest, expense or other\nliability with respect to such Taxes or Other Taxes after it has reimbursed the\namount thereof to the Issuing Bank or the appropriate LC Lender.\n\n(c) Each LC Lender organized under the laws of a jurisdiction outside the\nUnited States, on or prior to the date of its execution and delivery of this\nAgreement in the case of each Lender and on the date of the Assignment and\nAcceptance pursuant to which it becomes an LC Lender in the case of each other\nLC Lender, and from time to time thereafter if requested in writing by the\nBorrower (but only so long as such LC Lender remains lawfully able to do so),\nshall provide the Borrower with Internal Revenue Service Form 1001 or 4224, as\nappropriate, or any successor form prescribed by the Internal Revenue Service,\ncertifying that such LC Lender is entitled to benefits under an income tax\ntreaty to which the United States is a party which reduces the rate of\nwithholding tax on payments of interest or certifying that the income receivable\npursuant to this Agreement is effectively connected with the conduct of a trade\nor business in the United States. If the form provided by an LC Lender at the\ntime such LC Lender first becomes a party to this Agreement indicates a United\nStates interest withholding tax rate in excess of zero, withholding tax at such\nrate shall be considered excluded from Taxes.\n\n(d) For any period with respect to which an LC Lender has failed to provide the\nBorrower with the appropriate form described in Section 4.06(c) (other than\n ----- ----\nif such failure is due to a change in law occurring subsequent to the date on\nwhich a form originally was required to be provided, or if such form otherwise\nis not required under the first sentence of subsection (d) above), such LC\nLender shall not be entitled to indemnification under Section 4.06(a) with\nrespect to Taxes imposed by the United States; provided, however, that should an\n -------- -------\nLC Lender become subject to Taxes because of its failure to deliver a form\nrequired hereunder, the Borrower shall take such steps as the LC Lender shall\nreasonably request to assist the LC Lender to recover such Taxes.\n\n(e) Notwithstanding any contrary provisions of this Agreement, in the event\nthat an LC Lender that originally provided such form as may be required under\nSection 4.06(c) thereafter ceases to qualify for complete exemption from United\nStates withholding tax, such LC Lender may assign its interest under this\nAgreement to any assignee and such assignee shall be entitled to the same\nbenefits under this Section 4.06 as the assignor provided that the rate of\nUnited States withholding tax applicable to such assignee shall not exceed the\nrate then applicable to the assignor.\n\n(f) Without affecting its rights under this Section 4.06 or any other provision\nof this Agreement, the Issuing Bank and each LC Lender agree that if any Taxes\nor Other Taxes are imposed and required by law to be paid or to be withheld from\nany amount payable to the Issuing Bank or any LC Lender or its Applicable\n\n \nLending Office with respect to which the Borrower or any LC Subsidiary would be\nobligated pursuant to this Section 4.06 to increase any amounts payable to the\nIssuing Bank or such LC Lender or to pay any such Taxes or Other Taxes, the\nIssuing Bank or such LC Lender shall use reasonable efforts to select an\nalternative issuing office or Applicable Lending Office, as the case may be,\nwhich would not result in the imposition of such Taxes or Other Taxes; provided,\n --------\nhowever, that the Issuing Bank and each LC Lender shall not be obligated to\n------- \nselect an alternative issuing office or Applicable Lending Office, as the case\nmay be, if the Issuing Bank or such LC Lender determines that (i) as a result of\nsuch selection the Issuing Bank or such LC Lender would be in violation of an\napplicable law, regulation, or treaty, or would incur additional costs or\nexpenses or (ii) such selection would be inadvisable for regulatory reasons or\ninconsistent with the interests of the Issuing Bank or such LC Lender.\n\n(g) Each LC Lender agrees with the Borrower that it will take all reasonable\nactions by all usual means (i) to secure and maintain the benefit of all\nbenefits available to it under the provisions of any applicable double tax\ntreaty concluded by the United States of America to which it may be entitled by\nreason of the location of such LC Lender's Applicable Lending Office or place of\nincorporation or its status as an enterprise of any jurisdiction having any such\napplicable double tax treaty, if such benefit would reduce the amount payable by\nthe Borrower or an LC Subsidiary in accordance with this Section 4.06 and (ii)\notherwise to cooperate with the Borrower to minimize the amount payable by the\nBorrower or any LC Subsidiary pursuant to this Section 4.06; provided, however,\n -------- -------\nthat no LC Lender shall be obliged to disclose to the Borrower or any LC\nSubsidiary any information regarding its tax affairs or tax computations nor to\nreorder its tax affairs or tax planning pursuant hereto.\n\n(h) Without prejudice to the survival of any other agreement of the Borrower or\nany LC Subsidiary hereunder, the agreements and obligations of the Borrower and\nthe LC Subsidiaries contained in this Section 4.06 shall survive the payment in\nfull of the Obligations.\n\nSECTION 4.07 Sharing of Payments, Etc.\/Letters of Credit. If any LC Lender\n ------------------------------------------- \nshall obtain any payment (whether voluntary, involuntary, through the exercise\nof any right of set-off, or otherwise) on account of any Letter of Credit\nLiability of the Borrower or any LC Subsidiary hereunder (other than pursuant to\nSection 3.08 or 4.06) in excess of its LC Commitment Percentage of any such\npayments on account of such Letter of Credit Liability obtained by all the LC\nLenders, such LC Lender shall forthwith purchase from the other LC Lenders such\nparticipations in such other LC Lenders' participations purchased pursuant to\nSection 3.05 as shall be necessary to cause such purchasing LC Lender to share\nthe excess payment ratably with each other LC Lender, provided, however, that\n -------- ------- \nif all or any portion of such excess payment is thereafter recovered from such\npurchasing LC Lender such purchase from each other LC Lender shall be rescinded\nand each such LC Lender shall repay to the purchasing LC Lender the purchase\nprice to the extent of such recovery together with an amount equal to each such\nLC Lender's ratable share (according to the proportion of (i) the amount of such\nLC Lender's required repayment to (ii) the total amount so recovered from the\npurchasing LC Lender) of any interest or other amount paid or payable by the\npurchasing LC Lender in respect of the total amount so recovered. The Borrower\nand each LC Subsidiary agree that any LC Lender so purchasing a sub-\nparticipation from another LC Lender pursuant to this Section 4.07 may, to the\nfullest extent permitted by law, exercise all its rights of payment (including\nthe right of set-off) with respect to such sub-participation as fully as if such\nLC Lender were the direct creditor of the Borrower or each LC Subsidiary in the\namount of such participation.\n\n ARTICLE V\n CONDITIONS OF LENDING\n\nSECTION 5.01 Condition Precedent to Effectiveness of This Agreement. This\n ------------------------------------------------------ \nAgreement shall be effective as of June 27, 2000 if on or before June 29, 2000\nthe Agent shall have received the following, in form and substance satisfactory\nto the Agent and in sufficient copies for each Lender:\n\n (a) Certified copies of all documents of the Borrower evidencing\n necessary corporate action and governmental approvals, if any, with respect\n to this Agreement.\n\n \n (b) A certificate of the Secretary or an Assistant Secretary of the\n Borrower certifying the names and true signatures of the officers of the\n Borrower and each LC Subsidiary authorized to sign this Agreement and the\n other documents to be delivered hereunder (including, without limitation,\n Letter of Credit applications and agreements).\n\n (c) A favorable opinion of Borrower's General Counsel or Associate\n General Counsel, substantially in the form of Exhibit C hereto, and as to\n such other matters as any Lender through the Agent may reasonably request.\n\n (d) A favorable opinion of Shearman & Sterling, counsel for the\n Agent, substantially in the form of Exhibit D hereto.\n\n (e) Such other approvals, opinions or documents as the Agent may\n reasonably request.\n\nSECTION 5.02 Conditions Precedent to Each A Borrowing\/Issuance. The\n ------------------------------------------------- \nobligation of each A Lender to make an A Advance on the occasion of each A\nBorrowing (including the initial A Borrowing) and the obligation of the Issuing\nBank to Issue each Letter of Credit (including the initial Letter of Credit)\nshall be subject to the further conditions precedent that on the date of such A\nBorrowing or Issuance the following statements shall be true (and each of the\ngiving of the applicable Notice of A Borrowing and the acceptance by the\nBorrower of the proceeds of such A Borrowing and the request for Issuance by the\nBorrower or an LC Subsidiary shall constitute a representation and warranty by\nthe Borrower or such LC Subsidiary that on the date of such A Borrowing or\nIssuance such statements are true):\n\n (a) The representations and warranties contained in Section 6.01\n (other than the last sentence of Section 6.01(e)) are correct on and as of\n the date of such A Borrowing or Issuance, before and after giving effect to\n such A Borrowing or Issuance, and to the application of the proceeds\n therefrom, as though made on and as of such date, and\n\n (b) (i) No event has occurred and is continuing, or would result\n from such A Borrowing or from the application of the proceeds therefrom or\n from such Issuance, which constitutes an Event of Default or Default and\n (ii) no event has occurred and is continuing which constitutes an \"Event of\n Default\" or \"Default\" under the Five-Year Credit Agreement.\n\nSECTION 5.03 Conditions Precedent to Each B Borrowing. The obligation of each\n ---------------------------------------- \nA Lender which is to make a B Advance on the occasion of a B Borrowing\n(including the initial B Borrowing) to make such B Advance as part of such B\nBorrowing is subject to the conditions precedent that (i) the Agent shall have\nreceived the written confirmatory Notice of B Borrowing with respect thereto or\nthe notices from the Borrower contemplated by the second sentence of Section\n2.03(a)(v) and (ii) on the date of such B Borrowing the following statements\nshall be true (and each of the giving of the applicable Notice of B Borrowing\nand the acceptance by the Borrower of the proceeds of such B Borrowing shall\nconstitute a representation and warranty by the Borrower that on the date of\nsuch B Borrowing such statements are true):\n\n (a) The representations and warranties contained in Section 6.01\n (other than the last sentence of Section 6.01(e)) are correct on and as of\n the date of such B Borrowing, before and after giving effect to such B\n Borrowing and to the application of the proceeds therefrom, as though made\n on and as of such date,\n\n (b) (i) No event has occurred and is continuing, or would result\n from such B Borrowing or from the application of the proceeds therefrom,\n which constitutes an Event of \n\n \n Default or Default and (ii) no event has occurred and is continuing which\n constitutes an \"Event of Default\" or \"Default\" under the Five-Year Credit\n Agreement, and\n\n (c) No event has occurred and no circumstance exists as a result of\n which the information concerning the Borrower that has been provided to the\n Agent and each A Lender by the Borrower in connection herewith would, taken\n as a whole, include an untrue statement of a material fact or omit to state\n any material fact or any fact necessary to make the statements contained\n therein, in the light of the circumstances under which they were made, not\n misleading.\n\n ARTICLE VI\n REPRESENTATIONS AND WARRANTIES\n\nSECTION 6.01 Representations and Warranties of the Borrower. The Borrower\nrepresents and warrants as follows:\n\n (a) The Borrower is a corporation duly organized, validly existing\n and in good standing under the laws of Delaware; each LC Subsidiary is a\n corporation duly organized, validly existing and in good standing under the\n laws of its jurisdiction of incorporation. The Borrower and each of its\n Subsidiaries possess all corporate powers and all other authorizations and\n licenses necessary to engage in their respective businesses, except where\n the failure to so possess would not have a Material Adverse Effect.\n\n (b) The execution, delivery and performance by the Borrower and each\n LC Subsidiary of this Agreement are within the Borrower's and such LC\n Subsidiary's respective corporate powers, have been duly authorized by all\n necessary corporate action, and do not contravene (i) the Borrower's or any\n LC Subsidiary's charter or by-laws or (ii) law or any contractual\n restriction binding on or affecting the Borrower or any LC Subsidiary or\n their respective properties.\n\n (c) No authorization or approval or other action by, and no notice to\n or filing with, any governmental authority or regulatory body is required\n for the due execution, delivery and performance by the Borrower or each LC\n Subsidiary of this Agreement.\n\n (d) This Agreement is the legal, valid and binding obligation of the\n Borrower and each LC Subsidiary enforceable against the Borrower and each\n LC Subsidiary in accordance with its terms, except as limited by\n bankruptcy, insolvency or other laws of general application relating to or\n affecting the enforcement of creditors' rights generally and general\n principles of equity (regardless of whether considered in a proceeding in\n equity or at law).\n\n (e) The Consolidated balance sheets of the Borrower and its\n Subsidiaries as at January 29, 2000, and the related Consolidated\n statements of income and retained earnings of the Borrower and its\n Subsidiaries for the Fiscal Year then ended, certified by Deloitte & Touche\n LLP, copies of which have been furnished to each Lender, fairly present the\n Consolidated financial condition of the Borrower and its Subsidiaries as at\n such date and the results of the operations of the Borrower and its\n Subsidiaries for the period ended on such date, all in accordance with\n generally accepted accounting principles consistently applied. Since\n January 29, 2000, there has been no material adverse change in the\n condition (financial or otherwise), operations, properties or prospects of\n the Borrower and its Subsidiaries taken as a whole.\n\n \n (f) There is no pending or, to the best of Borrower's knowledge,\n threatened action or proceeding affecting the Borrower or any of its\n Subsidiaries before any court, governmental agency or arbitrator, which has\n a reasonable probability (taking into account the exhaustion of all appeals\n and the assertion of all defenses) of having a Material Adverse Effect or\n which purports to affect the legality, validity or enforceability of this\n Agreement.\n\n (g) Following the application of the proceeds of each Advance, not\n more than 25 percent of the value of the assets (either of the Borrower\n only or of the Borrower and its Subsidiaries on a Consolidated basis) which\n are subject to any restriction on Liens set forth in this Agreement or in\n any agreement or instrument between the Borrower and any Lender or any\n Affiliate of any Lender relating to Debt and within the scope of Section\n 8.01(d) will consist of Margin Stock.\n\n (h) Neither the Borrower nor any of its Subsidiaries is an\n \"investment company,\" or an \"affiliated person\" of, or \"promoter\" or\n \"principal underwriter\" for, an \"investment company,\" as such terms are\n defined in the Investment Company Act of 1940, as amended.\n\n (i) Set forth on Schedule VII hereto is a complete and accurate list,\n as of the date hereof, of all Plans of the Borrower and its Subsidiaries.\n Neither the Borrower nor any ERISA Affiliate is a party or subject to, or\n has any obligation to make payments, to, any Multiemployer Plan.\n\n ARTICLE VII\n COVENANTS OF THE BORROWER\n\nSECTION 7.01 Affirmative Covenants. The Borrower will, unless the Majority\n --------------------- \nCombined Lenders shall otherwise consent in writing:\n\n (a) Compliance with Laws, Etc. Comply, and cause each of its\n ------------------------- \n Subsidiaries to comply, in all material respects with all applicable laws\n (including, without limitation, all Environmental Laws), rules, regulations\n and orders, such compliance to include, without limitation, paying before\n the same become delinquent all taxes, assessments and governmental charges\n imposed upon it or upon its property except to the extent contested in good\n faith or where the failure to comply would not have a Material Adverse\n Effect.\n\n (b) Preservation of Corporate Existence, Etc. Preserve and maintain,\n ---------------------------------------- \n and cause each of its Subsidiaries to preserve and maintain, its corporate\n existence, rights (charter and statutory), and franchises except if, in the\n reasonable business judgment of the Borrower or such Subsidiary, as the\n case may be, it is in its best economic interest not to preserve and\n maintain such rights or franchises and such failure to preserve and\n maintain such rights or franchises would not materially adversely affect\n the rights of the Lenders or the Issuing Bank hereunder or the ability of\n the Borrower or any LC Subsidiary to perform its obligations hereunder.\n\n (c) Visitation Rights. Permit the Agent, the Issuing Bank and any\n ----------------- \n Lender or any agents or representatives thereof from time to time during\n normal business hours to examine and make copies of and abstracts from the\n records and books of account of, and upon reasonable prior notice to visit\n the properties of, the Borrower and its Subsidiaries during reasonable\n business hours, without hindrance or delay, and to discuss the affairs,\n finances and accounts of the Borrower and its Subsidiaries with any of\n their respective directors, officers or agents.\n\n \n (d) Keeping of Books. Keep, and cause each of its Subsidiaries to\n ---------------- \n keep, proper books of record and account, in which full and correct entries\n shall be made of all financial transactions and the assets and business of\n the Borrower and each of its Subsidiaries in accordance with sound business\n practice.\n\n (e) Maintenance of Properties, Etc. Maintain and preserve, and cause\n ------------------------------ \n each of its Subsidiaries to maintain and preserve, all of its properties\n which are used or useful in the conduct of its business in good working\n order and condition, ordinary wear and tear excepted, consistent with sound\n business practice, except where the failure to so maintain and preserve\n would not have a Material Adverse Effect.\n\n (f) Maintenance of Insurance. Maintain, and cause each of its\n ------------------------ \n Subsidiaries to maintain, insurance (other than earthquake insurance) in\n amounts, from responsible and reputable insurance companies or\n associations, with limitations, of types and on terms as is customary for\n the industry; provided, that, the Borrower and each of its Subsidiaries may\n -------- ---- \n self-insure risks and liabilities in accordance with its practice as of the\n date hereof and may in addition self-insure risks and liabilities in\n amounts as are customarily self-insured by similarly situated Persons in\n the industry.\n\n (g) Employment of Technology, Disposal of Hazardous Materials, Etc.\n -------------------------------------------------------------- \n (i) Employ, and cause each of its Subsidiaries to employ, appropriate\n technology and compliance procedures to maintain compliance with any\n applicable Environmental Laws except where the failure to so employ would\n not have a Material Adverse Effect, (ii) obtain and maintain, and cause\n each of its Subsidiaries to obtain and maintain, any and all material\n permits required by applicable Environmental Laws in connection with its or\n its Subsidiaries' operations and (iii) dispose of, and cause each of its\n Subsidiaries to dispose of, any and all Hazardous Substances only at\n facilities and with carriers reasonably believed to possess valid permits\n under RCRA, if applicable, and any applicable state and local Environmental\n Laws except where the failure to so dispose would not have a Material\n Adverse Effect. The Borrower shall use its best efforts, and cause each of\n its Subsidiaries to use its best efforts, to obtain all certificates\n required by law to be obtained by the Borrower and its Subsidiaries from\n all contractors employed by the Borrower or any of its Subsidiaries in\n connection with the transport or disposal of any Hazardous Substances\n except where failure to transport or dispose in accordance with any\n applicable Environmental Laws would not have a Material Adverse Effect.\n\n (h) Environmental Matters. If the Borrower or any of its Subsidiaries\n --------------------- \n shall:\n\n (i) receive written notice that any material violation of any\n Environmental Laws may have been committed or is about to be committed\n by the Borrower or any of its Subsidiaries the cure of which would\n result in expenditures exceeding $1,000,000;\n\n (ii) receive written notice that any administrative or judicial\n complaint or order has been filed or is about to be filed against the\n Borrower or any of its Subsidiaries alleging any material violation of\n any Environmental Laws or requiring the Borrower or any of its\n Subsidiaries to take any action (which, if taken, would result in\n expenditures exceeding $1,000,000) in connection with the release or\n threatened release of Hazardous Substances or solid waste into the\n environment; or\n\n \n (iii) receive written notice from a federal, state, foreign or\n local governmental agency or private party alleging that the Borrower\n or any of its Subsidiaries is liable or responsible for costs in\n excess of $1,000,000 associated with the response to cleanup,\n stabilization or neutralization of any Environmental Activity;\n\n then it shall provide the Agent with a copy of such notice within five\n Business Days of the Borrower's or such Subsidiary's receipt thereof.\n\n (i) Guaranty. Within ten Business Days after the request of the\n -------- \n Majority Combined Lenders made through the Agent, cause its domestic\n Subsidiaries designated in such request to enter into and deliver a\n guaranty of the Obligations, such guaranty to be in form and substance\n satisfactory to the Majority Combined Lenders.\n\nSECTION 7.02 Negative Covenants. The Borrower will not, without the written\n ------------------ \nconsent of the Majority Combined Lenders:\n\n (a) Liens, Etc. Create or suffer to exist, or permit any of its\n ---------- \n Subsidiaries to create or suffer to exist, any Lien, other than Permitted\n Liens and Liens upon or with respect to Margin Stock.\n\n (b) Debt. Create or suffer to exist, or permit any of its\n ---- \n Subsidiaries to create or suffer to exist, any Debt if, immediately after\n giving effect to the incurrence of such Debt and the receipt and\n application of any proceeds thereof, the Borrower and its Subsidiaries, on\n a Consolidated basis, would be in violation of the financial covenant\n specified in Section 7.03 hereof.\n\n (c) Mergers, Etc. Merge or consolidate with or into, or convey,\n ------------ \n transfer, lease or otherwise dispose of (whether in one transaction or in a\n series of transactions) all or substantially all of its assets (whether now\n owned or hereafter acquired) to, any Person, or permit any of its\n Subsidiaries to do so, except that any Subsidiary of the Borrower may merge\n or consolidate with or into, or dispose of assets to, any other Subsidiary\n of the Borrower and except that any Subsidiary of the Borrower may merge\n into or dispose of assets to the Borrower and, subject to Section\n 7.02(d)(iii), the Borrower may merge or consolidate with or into, and any\n Subsidiary of the Borrower may merge or consolidate with or into, any other\n Person, provided in each case that, immediately after giving effect to such\n -------- \n proposed transaction, no Event of Default or Default shall exist, and in\n the case of any merger or consolidation to which the Borrower is a party,\n the Person into which the Borrower shall be merged or formed by any such\n consolidation shall be a corporation organized and existing under the laws\n of the United States of America or any State thereof and shall assume the\n Borrower's obligations hereunder in an agreement or instrument in form and\n substance reasonably satisfactory to the Agent.\n\n (d) Asset Acquisition, Investments, Mergers.\n --------------------------------------- \n\n (i) Asset Acquisitions. Purchase, or permit any of its\n ------------------ \n Subsidiaries to purchase, all or substantially all the assets of any\n Person (an \"Asset Acquisition\") unless (A) if such Asset Acquisition\n ------------------ ------ \n involves the purchase of Retail Assets, the purchase price of the\n Retail Assets to be purchased in such Asset Acquisition is less than\n 50% of the book value of the Borrower's Consolidated Total Assets\n immediately prior to such Asset Acquisition or (B) if such Asset\n Acquisition involves the purchase of Non-Retail Assets, the purchase\n price of the Non-Retail Assets to be purchased in such Asset\n Acquisition is \n\n \n less than 25% of the book value of the Borrower's Consolidated Total\n Assets immediately prior to such Asset Acquisition and (C) immediately\n prior to and after giving effect to such Asset Acquisition no Event of\n Default or Default shall exist.\n\n (ii) Investments. Make, or permit any of its Subsidiaries to\n ----------- \n make, an investment in any Person by way of the purchase of such\n Person's capital stock or securities or the making of capital\n contributions with respect thereto (an \"Investment\") unless (A) if\n ------ \n such Investment is in a Person predominantly engaged in the Retail\n Business, the purchase price and dollar amount of capital\n contributions made with respect to such Investment is less than 50% of\n the Borrower's Consolidated Total Assets immediately prior to such\n Investment or (B) if such Investment is in a Person engaged\n predominantly in the Non-Retail Business, the purchase price and\n dollar amount of capital contributions made with respect to such\n Investment is less than 25% of the Borrower's Consolidated Total\n Assets immediately prior to such Investment and (C) such Investment is\n made with the permission of the Board of Directors of the Person in\n whom the Investment is being made and immediately prior to and after\n giving effect to such Investment no Event of Default or Default shall\n exist. The foregoing limitation shall not restrict the Borrower's and\n its Subsidiaries' ability to make investments in the instruments\n described in Schedule VI hereto, as such Schedule may be amended from\n time to time by the Borrower. The Borrower shall provide the Agent\n and each Lender a copy of each change or amendment made to Schedule VI\n hereto promptly after each such change or amendment thereof.\n\n (iii) Mergers. Consummate, or permit the consummation of, any\n ------- \n merger or consolidation (regardless of whether it is otherwise\n permitted by Section 7.02(c)) if immediately after giving effect to\n such merger or consolidation the book value of Consolidated Non-Retail\n Assets of the surviving corporation is greater than 25% of the book\n value of Borrower's Consolidated Total Assets, or the book value of\n the Consolidated Retail Assets of the surviving corporation is greater\n than 50% of the Borrower's Consolidated Total Assets, in each case\n immediately prior to such merger or consolidation provided, that,\n -------- ---- \n Subsidiaries of the Borrower may merge into or with the Borrower or\n any other Subsidiary of the Borrower without regard to the\n restrictions of this Section 7.02(d)(iii).\n\n (e) Change in Nature of Business. Make any material change in the\n ---------------------------- \n nature of the business of the Borrower and its Subsidiaries as conducted as\n of the date hereof.\n\nSECTION 7.03 Financial Covenant. The Borrower will not, without the written\n ------------------ \nconsent of the Majority Combined Lenders, permit the ratio of Debt on the last\nday of any Fiscal Quarter of the Borrower to EBITDA for the period of four\nconsecutive Fiscal Quarters of the Borrower ending on such day to be greater\nthan 3.00 to 1.00.\n\nSECTION 7.04 Reporting Requirements. The Borrower will furnish to the Lenders:\n ---------------------- \n\n (i) as soon as available and in any event within 60 days after the\n end of each of the first three Fiscal Quarters of the Borrower,\n Consolidated balance sheets of the Borrower and its Subsidiaries as of the\n end of such Fiscal Quarters and Consolidated statements of income and\n retained earnings of the Borrower and its Subsidiaries for the period\n commencing at the end of the previous Fiscal Year and ending with the end\n of such Fiscal Quarter, certified by the chief financial officer or\n treasurer of the Borrower and accompanied by a certificate of said officer\n stating (i) that such have been prepared in accordance with generally\n accepted accounting \n\n \n principles, (ii) whether or not he or she has knowledge of the occurrence\n of any Event of Default or Default and, if so, stating in reasonable detail\n the facts with respect thereto and (iii) whether or not the Borrower is in\n compliance with the requirements set forth in Section 7.03 (which\n certificate shall contain the computations used by such chief financial\n officer in determining such compliance or non-compliance);\n\n (ii) as soon as available and in any event within 120 days after the\n end of each Fiscal Year of the Borrower, a copy of the annual report for\n such year for the Borrower and its Subsidiaries, containing Consolidated\n financial statements of the Borrower and its Subsidiaries for such Fiscal\n Year certified in a manner acceptable to the Majority Combined Lenders by\n Deloitte & Touche LLP or other independent public accountants reasonably\n acceptable to the Majority Combined Lenders;\n\n (iii) within 120 days after the end of each Fiscal Year of the\n Borrower, a certificate of the chief financial officer or treasurer of the\n Borrower stating (i) whether or not he or she has knowledge of the\n occurrence of any Event of Default or Default and, if so, stating in\n reasonable detail the facts with respect thereto, and (ii) whether or not\n the Borrower is in compliance with the requirements set forth in Section\n 7.03 (which certificate shall contain the computations used by such chief\n financial officer in determining such compliance or non-compliance);\n\n (iv) as soon as possible and in any event within five days after a\n Responsible Officer becomes aware of each Event of Default and Default, a\n statement of a Responsible Officer of the Borrower setting forth details of\n such Event of Default or Default and the action which the Borrower has\n taken and proposes to take with respect thereto;\n\n (v) promptly after the sending or filing thereof, copies of all\n reports which the Borrower sends to any of its security holders, and copies\n of all reports and registration statements which the Borrower or any\n Subsidiary files with the Securities and Exchange Commission or any\n national securities exchange;\n\n (vi) promptly after the filing or receiving thereof, copies of all\n reports and notices which the Borrower or any Subsidiary files under ERISA\n with the Internal Revenue Service or the Pension Benefit Guaranty\n Corporation or the U.S. Department of Labor or which the Borrower or any\n Subsidiary receives from such entities other than immaterial regular\n periodic notices and reports and notices and reports of general\n circulation;\n\n (vii) within 90 days after the end of each Fiscal Year of the\n Borrower, a summary, prepared by a Responsible Officer of the Borrower, of\n the Borrower's (and its Subsidiaries') major insurance coverages (and the\n amount of self-insurance) then in effect; and\n\n (viii) such other information respecting the condition or operations,\n financial or otherwise, of the Borrower or any of its Subsidiaries as the\n Issuing Bank, or any Lender through the Agent, may from time to time\n reasonably request.\n\n ARTICLE VIII\n EVENTS OF DEFAULT\n\nSECTION 8.01 Events of Default. If any of the following events (\"Events of\n ----------------- ---------\nDefault\") shall occur and be continuing:\n-------\n\n \n (a) The Borrower or any LC Subsidiary shall fail to pay any principal\n of any Advance or any reimbursement obligation under any Letter of Credit\n when the same becomes due and payable; or shall fail to pay any interest on\n any Advance, fees or any other amounts hereunder within two days after the\n same become due and payable by it; or\n\n (b) Any representation or warranty made by the Borrower herein\n (whether made on behalf of itself, an LC Subsidiary or otherwise) or by the\n Borrower (or any of its officers) in connection with this Agreement shall\n prove to have been incorrect in any material respect when made; or\n\n (c) The Borrower shall fail to perform or observe (i) the covenant\n contained in Section 7.03; or (ii) any term, covenant or agreement\n contained in Section 7.02(c) or (d) for a period of five days after written\n notice thereof shall have been given to the Borrower by the Issuing Bank,\n the Agent or any Lender; or (iii) any other term, covenant or agreement\n contained in this Agreement on its part to be performed or observed if the\n failure to perform or observe such other term, covenant or agreement shall\n remain unremedied for 30 days after written notice thereof shall have been\n given to the Borrower by the Issuing Bank, the Agent or any Lender; or\n\n (d) The Borrower or any of its Subsidiaries shall fail to pay any\n principal of or premium or interest on any Debt which is outstanding in a\n principal amount of at least $50,000,000 in the aggregate (but excluding\n Debt hereunder) of the Borrower or such Subsidiary (as the case may be),\n when the same becomes due and payable (whether by scheduled maturity,\n required prepayment, acceleration, demand or otherwise), and such failure\n shall continue after the applicable grace period, if any, specified in the\n agreement or instrument relating to such Debt; or any other event shall\n occur or condition shall exist under any agreement or instrument relating\n to any such Debt and shall continue after the applicable grace period, if\n any, specified in such agreement or instrument, if the effect of such event\n or condition is to accelerate, or to permit the acceleration of, the\n maturity of such Debt (other than any such Debt owed to a Lender or an\n Affiliate of a Lender if such event or condition shall relate solely to a\n restriction on the pledge or other disposition of Margin Stock owned by the\n Borrower or any of its Subsidiaries); or any such Debt shall be declared to\n be due and payable, or required to be prepaid (other than by a regularly\n scheduled required prepayment), redeemed, purchased or defeased, or an\n offer to prepay, redeem, purchase or defease such Debt shall be required to\n be made, in each case prior to the stated maturity thereof; or\n\n (e) The Borrower or any of its Subsidiaries shall generally not pay\n its debts as such debts become due, or shall admit in writing its inability\n to pay its debts generally, or shall make a general assignment for the\n benefit of creditors; or any proceeding shall be instituted by or against\n the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt\n or insolvent, or seeking liquidation, winding up, reorganization,\n arrangement, adjustment, protection, relief, or composition of it or its\n debts under any law relating to bankruptcy, insolvency or reorganization or\n relief of debtors, or seeking the entry of an order for relief or the\n appointment of a receiver, trustee, custodian or other similar official for\n it or for any substantial part of its property and, in the case of any such\n proceeding instituted against it (but not instituted by it), either such\n proceeding shall remain undismissed or unstayed for a period of 60 days, or\n any of the actions sought in such proceeding (including, without\n limitation, the entry of an order for relief against, or the appointment of\n a receiver, trustee, custodian or other similar official for, it or for any\n substantial part of its property) shall occur; or the Borrower or any of\n its Subsidiaries shall take any corporate action to authorize any of the\n actions set forth above in this subsection (e); or\n\n \n (f) Any judgment or order for the payment of money in excess of\n $50,000,000 shall e rendered against the Borrower or any of its\n Subsidiaries and either (i) enforcement proceedings shall have been\n commenced by any creditor upon such judgment or order or (ii) there shall\n be any period of ten consecutive days during which a stay of enforcement of\n such judgment or order, by reason of a pending appeal or otherwise, shall\n not be in effect; or\n\n (g) a Change of Control shall have occurred;\n\n then, and in any such event, the Agent shall at the request, or may with\n the consent, of the Majority Combined Lenders, by notice to the Borrower,\n (A) declare the obligation of each A Lender to make Advances to be\n terminated, whereupon the same shall forthwith terminate, (B) declare the\n Advances, all interest thereon and all other amounts payable under this\n Agreement to be forthwith due and payable, whereupon the Advances, all such\n interest and all such amounts shall become and be forthwith due and\n payable, without presentment, demand, protest or further notice of any\n kind, all of which are hereby expressly waived by the Borrower, (C) declare\n the obligation of the Issuing Bank to issue further Letters of Credit to be\n terminated, whereupon the same shall forthwith terminate, and\/or (D) demand\n from time to time that the Borrower, and if such demand is made the\n Borrower shall, pay to the Agent for the benefit of the Issuing Bank, an\n amount in immediately available funds equal to the then outstanding Letter\n of Credit Liability (plus the additional amounts specified by Section\n 3.13(c), if applicable) which shall be held by the Agent (or the Issuing\n Bank) as cash collateral in a cash collateral account under the exclusive\n control and dominion of the Agent (or Issuing Bank) and applied to the\n reduction of such Letter of Credit Liability as drawings are made on\n outstanding Letters of Credit; provided, however, that in the event of an\n -------- ------- \n actual or deemed entry of an order for relief with respect to the Borrower\n or any of its Subsidiaries under the Federal Bankruptcy Code, the\n obligation of each A Lender to make A Advances shall automatically be\n terminated, the then outstanding Advances, all such interest and all such\n amounts shall automatically become and be due and payable, without\n presentment, demand, protest or any notice of any kind, all of which are\n hereby expressly waived by the Borrower and the obligation of the Issuing\n Bank to Issue Letters of Credit shall automatically be terminated.\n\n ARTICLE IX\n THE AGENT\n\nSECTION 9.01 Authorization and Action. Each Lender and the Issuing Bank\n ------------------------ \nhereby appoints and authorizes the Agent to take such action as agent on its\nbehalf and to exercise such powers under this Agreement as are delegated to the\nAgent by the terms hereof, together with such powers as are reasonably\nincidental thereto. As to any matters not expressly provided for by this\nAgreement (including, without limitation, enforcement or collection of the\nAdvances), the Agent shall not be required to exercise any discretion or take\nany action, but shall be required to act or to refrain from acting (and shall be\nfully protected in so acting or refraining from acting) upon the instructions of\nthe Majority Combined Lenders, and such instructions shall be binding upon all\nLenders; provided, however, that the Agent shall not be required to take any\n -------- ------- \naction which exposes the Agent to personal liability or which is contrary to\nthis Agreement or applicable law. The Agent agrees to give to each Lender\nprompt notice of each notice given to it by the Borrower pursuant to the terms\nof this Agreement unless the distribution of such notice is otherwise provided\nfor herein.\n\nThe Issuing Bank shall act on behalf of the LC Lenders with respect to any\nLetters of Credit Issued by it and the documents associated therewith until such\ntime and except for so long as the Agent may elect to act for \n\n \nthe Issuing Bank with respect thereto; provided, however, that the Issuing Bank\n -------- -------\nshall have all of the benefits and immunities (i) provided to the Agent in this\nArticle IX with respect to any acts taken or omissions suffered by the Issuing\nBank in connection with Letters of Credit Issued by it or proposed to be Issued\nby it and the applications and agreements for letters of credit pertaining to\nthe Letters of Credit as fully as if the term \"Agent\", as used in this Article\n ------\nIX, included the Issuing Bank with respect to such acts or omissions, and (ii)\nas additionally provided in this Agreement with respect to the Issuing Bank.\n\nSECTION 9.02 Agent's Reliance, Etc. Neither the Agent nor any of its \n --------------------- \ndirectors, officers, agents or employees shall be liable for any action taken or\nomitted to be taken by it or them under or in connection with this Agreement,\nexcept for its or their own gross negligence or willful misconduct. Without\nlimitation of the generality of the foregoing, the Agent: (i) may treat the\nLender which made any Advance (or purchased or funded a participation with\nrespect to a Letter of Credit) as the holder and owner of the Debt resulting\ntherefrom until the Agent receives and accepts an Assignment and Acceptance\nentered into by such Lender, as assignor, and an Eligible Assignee, as assignee,\nas provided in Section 10.07; (ii) may consult with legal counsel (including\ncounsel for the Borrower), independent public accountants and other experts\nselected by it and shall not be liable for any action taken or omitted to be\ntaken in good faith by it in accordance with the advice of such counsel,\naccountants or experts; (iii) makes no warranty or representation to any Lender\nand shall not be responsible to any Lender for any statements, warranties or\nrepresentations (whether written or oral) made in or in connection with this\nAgreement; (iv) shall not have any duty to ascertain or to inquire as to the\nperformance or observance of any of the terms, covenants or conditions of this\nAgreement on the part of the Borrower or to inspect the property (including the\nbooks and records) of the Borrower or its Subsidiaries; (v) shall not be\nresponsible to any Lender for the due execution, legality, validity,\nenforceability, genuineness, sufficiency or value of this Agreement or any other\ninstrument or document furnished pursuant hereto; and (vi) shall incur no\nliability under or in respect of this Agreement by acting upon any notice,\nconsent, certificate or other instrument or writing (which may be by telecopier)\nbelieved by it to be genuine and signed or sent by the proper party or parties.\n\nSECTION 9.03 CUSA, Citibank and Affiliates. With respect to CUSA's A\n ----------------------------- \nCommitment, its LC Commitment and the Advances made by it, and with respect to\nCitibank as Issuing Bank, CUSA and Citibank shall have the same rights and\npowers under this Agreement as any other Lender and may exercise the same as\nthough it were not the Agent or Issuing Bank, as the case may be; and the term\n\"Lender\" or \"Lenders\" shall, unless otherwise expressly indicated, include CUSA\n-------- -------- \nand Citibank in their individual capacities. CUSA, Citibank and each of their\nrespective Affiliates (and, as applicable, any of their respective officers and\ndirectors) may accept deposits from, lend money to, act as trustee under\nindentures of, and generally engage in any kind of business with, the Borrower,\nany of its Subsidiaries and any Person who may do business with or own\nsecurities of the Borrower or any such Subsidiary, all as if CUSA were not the\nAgent or Citibank were not the Issuing Bank, as the case may be, and without any\nduty to account therefor to the Lenders.\n\nSECTION 9.04 Lender Credit Decision. Each Lender acknowledges that it has,\n ---------------------- \nindependently and without reliance upon the Agent, the Issuing Bank or any other\nLender and based on the financial statements referred to in Section 6.01 and\nsuch other documents and information as it has deemed appropriate, made its own\ncredit analysis and decision to enter into this Agreement. Each Lender also\nacknowledges that it will, independently and without reliance upon the Agent,\nthe Issuing Bank or any other Lender and based on such documents and information\nas it shall deem appropriate at the time, continue to make its own credit\ndecisions in taking or not taking action under this Agreement.\n\nSECTION 9.05 Indemnification. (a) Agent. The Lenders agree to indemnify the\n --------------- ----- \nAgent (to the extent not reimbursed by the Borrower or any LC Subsidiary),\nratably, according to their respective Credit Exposures, from and against any\nand all liabilities, obligations, losses, damages, penalties, actions,\njudgments, suits, costs, expenses or disbursements of any kind or nature\nwhatsoever which may be imposed on, incurred by, or asserted against the Agent\nin any way relating to or arising out of this Agreement or any action taken or\nomitted by the Agent under this Agreement, provided, that, no Lender shall be\n -------- ---- \nliable for any portion of such \n\n \nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,\ncosts, expenses or disbursements resulting from the Agent's gross negligence or\nwillful misconduct. Without limitation of the foregoing, each Lender agrees to\nreimburse the Agent promptly upon demand for its ratable share of any out-of-\npocket expenses (including reasonable counsel fees) incurred by the Agent in\nconnection with the preparation, execution, delivery, administration,\nmodification, amendment or enforcement (whether through negotiations, legal\nproceedings or otherwise) of, or legal advice in respect of rights or\nresponsibilities under, this Agreement, to the extent that the Agent is not\nreimbursed for such expenses by the Borrower. In the case of any investigation,\nlitigation or proceeding giving rise to any such liabilities, obligations,\nlosses, damages, penalties, actions, judgments, suits, costs expenses or\ndisbursements, this Section 9.05(a) applies whether any such investigation,\nlitigation or proceeding is brought by the Agent, the Issuing Bank, any Lender\nor a third party.\n\n(b) Issuing Bank. The LC Lenders agree to indemnify the Issuing Bank (to the\n ------------ \nextent not reimbursed by the Borrower or any LC Subsidiary), ratably according\nto their respective LC Commitment Percentages, from and against any and all\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,\ncosts, expenses or disbursements of any kind or nature whatsoever which may be\nimposed on, incurred by, or asserted against the Issuing Bank in any way\nrelating to or arising out of this Agreement and the Letters of Credit or any\naction taken or omitted by the Issuing Bank under this Agreement or the Letters\nof Credit, provided, that, no LC Lender shall be liable for any portion of such\n -------- ---- \nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,\ncosts, expenses or disbursements resulting from the Issuing Bank's gross\nnegligence or willful misconduct. Without limitation of the foregoing, each LC\nLender agrees to reimburse the Issuing Bank promptly upon demand for its ratable\nshare of any out-of-pocket expenses (including reasonable counsel fees) incurred\nby the Issuing Bank in connection with the preparation, execution,\nadministration, modification, amendment or enforcement (whether through\nnegotiations, legal proceedings or otherwise) of, or legal advice in respect of\nrights or responsibilities under, this Agreement or the Letters of Credit, to\nthe extent that the Issuing Bank is not reimbursed for such expenses by the\nBorrower. In the case of any investigation, litigation or proceeding giving rise\nto any such liabilities, obligations, losses, damages, penalties, actions,\njudgments, suits, costs expenses or disbursements, this Section 9.05(b) applies\nwhether any such investigation, litigation or proceeding is brought by the\nIssuing Bank, the Agent, any Lender or a third party.\n\nSECTION 9.06 Successor Agent\/Issuing Bank (a) Agent. The Agent may resign at\n ---------------------------- ----- \nany time by giving 30 days' prior written notice thereof to the Lenders and the\nBorrower and may be removed at any time with or without cause by the Majority\nCombined Lenders; provided, that, the Agent may resign without having given such\n -------- ---- \nnotice if it is required to do so as a matter of law. Upon any such resignation\nor removal, the Majority Combined Lenders, after consulting with the Borrower\nand giving due consideration to any successor agent recommended by the Borrower,\nshall have the right to appoint a successor Agent with the consent of the\nBorrower (which shall not be unreasonably withheld). If no successor Agent shall\nhave been so appointed by the Majority Combined Lenders and consented to by the\nBorrower, and shall have accepted such appointment, within 30 days after the\nretiring Agent's giving of notice of resignation or the Majority Combined\nLenders' removal of the retiring Agent, then the retiring Agent may, after\nconsulting with the Borrower and giving due consideration to any successor agent\nrecommended by the Borrower, on behalf of the Lenders, appoint a successor\nAgent, which shall be a commercial bank organized or licensed to do business\nunder the laws of the United States of America or of any State thereof and\nhaving a combined capital and surplus of at least $50,000,000. Upon the\nacceptance of any appointment as Agent hereunder by a successor Agent, such\nsuccessor Agent shall thereupon succeed to and become vested with all the\nrights, powers, privileges and duties of the retiring Agent, and the retiring\nAgent shall be discharged from its duties and obligations under this Agreement.\nAfter any retiring Agent's resignation or removal hereunder as Agent, the\nprovisions of this Article IX shall inure to its benefit as to any actions taken\nor omitted to be taken by it while it was Agent under this Agreement.\n\n \n(b) Issuing Bank. The Issuing Bank may be removed at any time with or without\n ------------ \ncause jointly by the Majority Combined Lenders and the Borrower. Upon any\nremoval of the Issuing Bank, the Majority Combined Lenders and the Borrower\nshall jointly have the right to appoint a successor Issuing Bank. If no\nsuccessor Issuing Bank shall have been so appointed by the Majority Combined\nLenders and the Borrower, and shall have accepted such appointment, within 30\ndays after the removal of the Issuing Bank, the Issuing Bank may, on behalf of\nthe Lenders, appoint a successor Issuing Bank, which shall be a commercial bank\norganized or licensed to do business under the laws of the United States of\nAmerica or of any State thereof and having a combined capital and surplus of at\nleast $50,000,000. Upon the acceptance of any appointment as Issuing Bank, such\nsuccessor Issuing Bank shall thereupon succeed to and become vested with all the\nrights, powers, privileges and duties of the retiring Issuing Bank, and the\nretiring Issuing Bank shall be discharged from its duties and obligations under\nthis Agreement, except with respect to Letters of Credit outstanding at the time\nof such removal. After any retiring Issuing Bank is removed hereunder as Issuing\nBank, the provisions of this Article IX shall inure to its benefit as to any\nactions taken by it while it was Issuing Bank under this Agreement.\nNotwithstanding the foregoing, the Issuing Bank may not be removed unless prior\nto or contemporaneously with such removal it shall have received a Dollar\namount, in immediately available funds, equal to all outstanding Letter of\nCredit Liability then outstanding and then owing to the retiring Issuing Bank\nand shall have been indemnified by the Borrower, the LC Lenders and such\nsuccessor Issuing Bank, to the retiring Issuing Bank's satisfaction, against all\nLetter of Credit Liability. The fee letter referred to in Section 3.06(b) (or\nany replacement thereof) shall continue to inure to the retiring Issuing Bank's\nbenefit, and the retiring Issuing Bank shall continue to be bound thereby, until\nsuch time as all Letter of Credit Liability outstanding on the effective date of\nthe retiring Issuing Bank's removal has been discharged in full.\n\nSECTION 9.07 Senior Managing Agents and Arranger. Neither the Lenders\n ----------------------------------- \nidentified as \"Senior Managing Agents\" nor the Arranger herein shall have any\n ----------------------- \nright, power, obligation, responsibility or duty under this Agreement other\nthan, in the case of the Lenders so identified as \"Senior Managing Agents\",\n ----------------------- \nthose applicable to all Lenders as such. Without limiting the foregoing,\nneither the Lenders so identified as \"Senior Managing Agents\" nor the Arranger\n ----------------------- \nshall have or be deemed to have any fiduciary relationship with any Lender.\nEach Lender acknowledges that it has not relied, and will not rely, on any of\nthe Lenders so identified as \"Senior Managing Agents\" or the Arranger in\n ----------------------- \ndeciding to enter into this Agreement or in taking or not taking action\nhereunder.\n\n ARTICLE X\n MISCELLANEOUS\n\nSECTION 10.01 Amendments, Etc. (a) Majority Combined Lenders. Except as is\n --------------- ------------------------- \notherwise expressly provided in this Section 10.01, no amendment or waiver of\nany provision of this Agreement, nor consent to any departure by the Borrower\ntherefrom, shall in any event be effective unless the same shall be in writing\nand signed by the Majority Combined Lenders.\n\n(b) Majority A Lenders. The Majority A Lenders may (and shall have the\n ------------------ \nexclusive right to), in writing, amend, waive or consent to any departure from\nArticle II hereof (and the definitions used exclusively therein) and Article IV\nhereof as it relates to the A Advances, without the consent of the Majority\nCombined Lenders; provided, however, that no amendment, waiver or consent \n -------- ------- \n(whether effected by the Majority A Lenders pursuant to this subsection (b) or\nby the Majority Combined Lenders pursuant to subsection (a)) shall, unless in\nwriting and signed by all the A Lenders, do any of the following: (i) waive any\nof the conditions specified in Section 5.01 or 5.02 as they relate to A\nBorrowings and A Advances, (ii) increase the A Commitments of the A Lenders\n(other than as provided for in Section 2.05(b)) or subject the A Lenders to any\nadditional obligations, (iii) reduce the principal of, or interest on, the A\nAdvances or any fees or other amounts payable hereunder to the A Lenders, (iv)\npostpone any date fixed for any payment of principal of, or interest on, the A\nAdvances or any fees or other amounts payable hereunder to the A Lenders (other\nthan as permitted by Section 2.14), (v) change the percentage of the A\nCommitments or of the aggregate unpaid\n\n \nprincipal amount of the A Advances, or the number of A Lenders, which shall be\nrequired for the A Lenders or any of them to take any action hereunder or (vi)\namend this subsection (b) of this Section 10.01.\n\n(c) Majority LC Lenders. The Majority LC Lenders may (and shall have the\n ------------------- \nexclusive right to), in writing, amend, waive or consent to any departure from\nArticle III hereof (and the definitions used exclusively therein) and Article IV\nhereof as it relates to the Letters of Credit, without the consent of the\nMajority Combined Lenders; provided, however, that no amendment, waiver or \n -------- ------- \nconsent (whether effected by the Majority LC Lenders pursuant to this subsection\n(c) or by the Majority Combined Lenders pursuant to subsection (a)) shall,\nunless in writing and signed by all the LC Lenders, do any of the following: (i)\nwaive any of the conditions specified in Section 5.01 or 5.02, as they relate to\nthe Issuance of Letters of Credit, (ii) increase the LC Commitments of the LC\nLenders (other than as provided for in Section 3.10) or subject the LC Lenders\nto any additional obligations, (iii) reduce any amounts due hereunder or any\nfees or other amounts payable hereunder with respect to the Letters of Credit to\nthe LC Lenders or the Issuing Bank, (iv) postpone any date fixed for any payment\nof any fees or other amounts payable hereunder with respect to the Letters of\nCredit to the LC Lenders or the Issuing Bank (other than as permitted by Section\n3.12), (v) change the percentage of the LC Commitments or of the aggregate\nunpaid Letter of Credit Liability hereunder, or the number of LC Lenders, which\nshall be required for the LC Lenders or any of them to take any action\nhereunder, (vi) release the Borrower from its obligation to comply with Section\n3.14 or (vii) amend this subsection (c) of this Section 10.01.\n\n(d) Agent and Issuing Bank. No amendment, waiver or consent given or effected\n ---------------------- \npursuant to this Section 10.01 shall, unless in writing and signed by the Agent\nor the Issuing Bank, as the case may be, in addition to the Lenders required\nabove to take such action, affect the rights, obligations or duties of the Agent\nor the Issuing Bank, as the case may be, under this Agreement.\n\n(e) Limitation of Scope. All waivers and consents granted under this Section\n ------------------- \n10.01 shall be effective only in the specific instance and for the specific\npurpose for which given.\n\nSECTION 10.02 Notices, Etc. All notices and other communications provided for\n ------------ \nhereunder shall be in writing (including telecopier) and mailed, sent by\novernight courier, telecopied or delivered, if to the Borrower, at its address\nat 900 Cherry Avenue, San Bruno, CA 94066 Attention: Treasurer, Telecopier: 650-\n874-7809; if to any Lender, at its Domestic Lending Office specified opposite\nits name on Schedule I-B hereto; if to any other Lender, at its Domestic Lending\nOffice specified in the Assignment and Acceptance pursuant to which it became a\nLender; if to the Agent, at its address at 399 Park Avenue, New York, New York\n10043, Attention: Credit Administration, Telecopier: 302-894-6120; and if to the\nIssuing Bank, at its address at 399 Park Avenue, New York, New York 10043,\nAttention: Letter of Credit Administration, Telecopier: 800-934-9030; with a\ncopy, in the case of notices to the Agent or the Issuing Bank, to Citicorp North\nAmerica, Inc., One Sansome Street, San Francisco, California, Attention: Carolyn\nWendler, Telecopier: 415-433-0307, or, as to each party, at such other address\nor to such other person as shall be designated by such party in a written notice\nto the other parties. All such notices and communications shall, when mailed, be\neffective three days after being deposited in the mails, when sent by overnight\ncourier, be effective one day after being sent by overnight courier, when\ntelecopied or delivered to the telegraph company, be effective when received or\ndelivered to the cable company, respectively; and when delivered by hand, be\neffective upon delivery except that notices and communications to the Agent\npursuant to Article II or IX and to the Issuing Bank pursuant to Article III or\nIX shall not be effective until received by the Agent or Issuing Bank, as the\ncase may be.\n\nSECTION 10.03 No Waiver; Remedies. No failure on the part of any Lender, the\n ------------------- \nIssuing Bank or the Agent to exercise, and no delay in exercising, any right\nhereunder shall operate as a waiver thereof; nor shall any single or partial\nexercise of any such right preclude any other or further exercise thereof or the\nexercise of any other right. The remedies herein provided are cumulative and\nnot exclusive of any remedies provided by law.\n\nSECTION 10.04 Costs and Expenses. (a) The Borrower agrees to pay on demand all\n ------------------ \ncosts and expenses of the Agent and the Issuing Bank incurred in connection\nwith the preparation, execution, delivery, \n\n \nmodification and amendment of this Agreement, and the other documents to be\ndelivered hereunder, including, without limitation, the reasonable fees and out-\nof-pocket expenses of counsel for the Agent and Issuing Bank with respect\nthereto and with respect to advising the Agent and Issuing Bank as to their\nrespective rights and responsibilities under this Agreement. The Borrower\nfurther agrees to pay on demand all costs and expenses of the Agent, the Issuing\nBank and each Lender (including, without limitation, reasonable counsel fees and\nexpenses), incurred in connection with the enforcement (whether through\nnegotiations, legal proceedings or otherwise) of this Agreement and the other\ndocuments to be delivered hereunder, including, without limitation, reasonable\ncounsel fees and expenses in connection with the enforcement of their respective\nrights hereunder.\n\n(b) If any payment of principal of, or Conversion of, any Eurodollar Rate\nAdvance is made other than on the last day of the Interest Period for such A\nAdvance, as a result of a payment or Conversion pursuant to Section 2.05(b),\n2.09(d), 2.11, 2.13 or 2.14 or acceleration of the maturity of the Advances\npursuant to Section 8.01 or for any other reason, the Borrower shall, upon\ndemand by any A Lender (with a copy of such demand to the Agent), pay to the\nAgent for the account of such A Lender any amounts required to compensate such A\nLender for any additional losses, costs or expenses which it may reasonably\nincur as a result of such payment or Conversion, including, without limitation,\nany loss (including loss of anticipated profits), cost or expense incurred by\nreason of the liquidation or reemployment of deposits or other funds acquired by\nany A Lender to fund or maintain such A Advance.\n\n(c) The Borrower agrees to indemnify and hold harmless each of the Agent, each\nLender and the Issuing Bank and each of their Affiliates and their respective\nofficers, directors, employees, agents and advisors (each, an \"Indemnified\n -----------\nParty\") from and against any and all claims, damages, liabilities and expenses\n-----\n(including, without limitation, reasonable fees and disbursements of counsel),\nwhich may be incurred by or asserted against any Indemnified Party in connection\nwith or arising out of any investigation, litigation, or proceeding (whether or\nnot such Indemnified Party is party thereto) related to any acquisition or\nproposed acquisition by the Borrower, or by any Subsidiary of the Borrower, of\nall or any portion of the stock or substantially all the assets of any Person or\nany use or proposed use of the Advances or Letters of Credit by the Borrower or\nany LC Subsidiary, except to the extent such claim, damage, liability or expense\nshall have resulted from such Indemnified Party's gross negligence or willful\nmisconduct. In the event this indemnity is unenforceable as a matter of law as\nto a particular matter or consequence referred to herein, it shall be\nenforceable to the full extent permitted by law. The indemnification provisions\nset forth above shall be in addition to any liability the Borrower may otherwise\nhave. Without prejudice to the survival of any other obligation of the Borrower\nhereunder, the indemnities and obligations of the Borrower contained in this\nSection 10.04 shall survive the payment in full of all the Obligations.\n\n(d) The Borrower hereby acknowledges that the funding method by each Lender of\nits Advances hereunder shall be in the sole discretion of such Lender. The\nBorrower agrees that for purposes of any determination to be made under Sections\n2.08, 2.12(a), 2.13 or 10.04(b) of this Agreement each Lender shall be deemed to\nhave funded its Eurodollar Rate Advances with proceeds of Dollar deposits in the\nLondon interbank market.\n\nSECTION 10.05 Right of Set-off. Upon (i) the occurrence and during the\n ---------------- \ncontinuance of any Event of Default and (ii) the making of the request or the\ngranting of the consent specified by Section 8.01 to authorize the Agent to\ndeclare the Advances due and payable pursuant to the provisions of Section 8.01\nor to demand payment of (or cash collateralization of) all then outstanding\nLetter of Credit Liability, each Lender and each of its Affiliates is hereby\nauthorized at any time and from time to time, to the fullest extent permitted by\nlaw, to set off and apply any and all deposits (general or special, time or\ndemand, provisional or final) at any time held and other indebtedness at any\ntime owing by such Lender or such Affiliate to or for the credit or the account\nof the Borrower or any LC Subsidiary against any and all of the obligations of\nthe Borrower or any LC Subsidiary now or hereafter existing under this Agreement\nto such Lender (including, to the fullest extent permitted by law, obligations\nindirectly owed to such Lender by virtue of its purchase of a participation or\nsub-participation of the Letter of Credit Liability pursuant to Section 3.05),\nwhether or not such Lender shall have made any demand under this Agreement and\nalthough such obligations may be \n\n \nunmatured. Each Lender agrees promptly to notify the Borrower and the Agent\nafter any such set-off and application made by such Lender or any of its\nAffiliates, provided, that, the failure to give such notice shall not affect the\n -------- ---- \nvalidity of such set-off and application. The rights of each Lender and its\nAffiliates under this Section are in addition to other rights and remedies\n(including, without limitation, other rights of set-off) which such Lender and\nits Affiliates may have.\n\nSECTION 10.06 Binding Effect. This Agreement shall become effective when it\n -------------- \nshall have been executed by the Borrower, each LC Subsidiary to be a party\nhereto on the date hereof, the Issuing Bank and the Agent and when the Agent\nshall have been notified by each Lender that such Lender has executed it and\nthereafter shall be binding upon and inure to the benefit of the Borrower, each\nLC Subsidiary, the Issuing Bank, the Agent and each Lender and their respective\nsuccessors and assigns, except that the Borrower and each LC Subsidiary shall\nnot have the right to assign its respective rights hereunder or any interest\nherein without the prior written consent of the Lenders.\n\nSECTION 10.07 Assignments and Participations. (a) Each Lender may, and if\n ------------------------------ \ndemanded by the Borrower (following a demand by such Lender pursuant to Section\n2.08, 2.12, 3.08, 4.02 or 4.06, after such Lender has declined to vote in favor\nof extension of the Revolver Termination Date or LC Termination Date, as the\ncase may be, pursuant to Section 2.14 or 3.12, or after any Lender has assigned\nall or any portion of its rights and obligations under this Agreement to any\nAffiliate without the consent of the Borrower, upon at least 10 days' notice to\nsuch Lender and the Agent) will, assign to one or more banks or other entities\nall or a portion of its rights and obligations under this Agreement (including,\nwithout limitation, all or a portion, respectively, of its A Commitment and the\nA Advances owing to it and\/or of its LC Commitment and participations in Letter\nof Credit Liability); provided, however, that (i) each such respective\n -------- ------- \nassignment shall be of a percentage of all rights and obligations under this\nAgreement (other than any B Advances) (w) in respect of the assigning A Lender's\nA Commitment and A Advances and\/or (x) in respect of the assigning Lender's LC\nCommitment and participations in Letter of Credit Liability, as the case may be,\nthat is constant and not varying over time, (ii) the respective amounts of the\nrights and obligations (y) under the A Commitment and A Advances of the\nassigning A Lender and\/or (z) under the LC Commitment and participations in\nLetter of Credit Liability of the assigning lender, as the case may be, being\nassigned pursuant to each such assignment (determined as of the date of the\nAssignment and Acceptance with respect to such partial assignment) shall in no\nevent be less than 5% of all such rights and obligations or less than $5,000,000\n(or an integral multiple of $500,000 in excess thereof), as the case may be, in\nthe case of each of (y) and\/or (z), (iii) each such assignment shall be to an\nEligible Assignee consented to by the Borrower (which shall not unreasonably\nwithhold its consent); provided, that, the Borrower's consent need not be\n -------- ---- \nobtained if such assignment is made to an Affiliate of the assigning Lender,\nprovided that any Lender so assigning to any of its Affiliates shall give prompt\n-------- \nnotice thereof to the Borrower and the Agent, (iv) each such assignment made as\na result of a demand by the Borrower pursuant to this Section 10.07(a) shall be\narranged by the Borrower (at its expense, including, without limitation, payment\nof the processing and recordation fee referred to in subclause (vi) hereof)\nafter consultation with the Agent and shall be either an assignment of all of\nthe rights and obligations of the assigning Lender under this Agreement or an\nassignment of a portion of such rights and obligations made concurrently with\nanother such assignment or other such assignments which together cover all of\nthe rights and obligations of the assigning Lender under this Agreement, (v) no\nLender shall be obligated to make any such assignment as a result of a demand by\nthe Borrower pursuant to this Section 10.07(a) unless and until such Lender\nshall have received one or more payments from either the Borrower or one or more\nEligible Assignees in an aggregate amount at least equal to the aggregate\noutstanding principal amount of the Advances owing to such Lender, together with\naccrued interest thereon to the date of payment of such principal amount and all\nother amounts payable to such Lender under this Agreement, and (vi) the parties\nto each such assignment shall execute and deliver to the Agent, for its\nacceptance and recording in the Register, an Assignment and Acceptance, together\nwith a processing and recordation fee of $2,000; provided, that, no such fee\n -------- ---- \nshall be payable in connection with an assignment by an assigning Lender to an\nAffiliate of such assigning Lender. Upon such execution, delivery, \n\n \nacceptance and recording, from and after the effective date specified in each\nAssignment and Acceptance, (x) the assignee thereunder shall be a party hereto\nand, to the extent that rights and obligations hereunder have been assigned to\nit pursuant to such Assignment and Acceptance, have the rights and obligations\nof a Lender hereunder and (y) the Lender assignor thereunder shall, to the\nextent that rights and obligations hereunder have been assigned by it pursuant\nto such Assignment and Acceptance, relinquish its rights and be released from\nits obligations under this Agreement (and, in the case of an Assignment and\nAcceptance covering all or the remaining portion of an assigning Lender's rights\nand obligations under this Agreement, such Lender shall cease to be a party\nhereto). Without limiting the qualifications set forth in the first sentence of\nthis Section 10.07(a), but to clarify such sentence, any Lender having both an A\nCommitment and an LC Commitment may assign all or a portion of its rights and\nobligations relating to one of these commitments and at the same time assign\nnone, all, the same portion or a different portion of its rights and obligations\nrelating to the other commitment, provided that any assignment of any portion\n(including all) of a Lender's rights and obligations relating to its A\nCommitment shall include an assignment of the same portion (including all if\napplicable) of such Lender's rights and obligations relating to its A Advances\nand any assignment of any portion (including all) of a Lender's rights and\nobligations relating to its LC Commitment shall include an assignment of the\nsame portion (including all if applicable) of such Lender's rights and\nobligations relating to participations in Letter of Credit Liability.\n\n(b) By executing and delivering an Assignment and Acceptance, the Lender\nassignor thereunder and the assignee thereunder confirm to and agree with each\nother and the other parties hereto as follows: (i) other than as provided in\nsuch Assignment and Acceptance, such assigning Lender makes no representation or\nwarranty and assumes no responsibility with respect to any statements,\nwarranties or representations made in or in connection with this Agreement or\nthe execution, legality, validity, enforceability, genuineness, sufficiency or\nvalue of this Agreement or any other instrument or document furnished pursuant\nhereto; (ii) such assigning Lender makes no representation or warranty and\nassumes no responsibility with respect to the financial condition of the\nBorrower or any LC Subsidiary or the performance or observance by the Borrower\nor any LC Subsidiary of any of its obligations under this Agreement or any other\ninstrument or document furnished pursuant hereto; (iii) such assignee confirms\nthat it has received a copy of this Agreement, together with copies of the\nfinancial statements referred to in Section 6.01 and such other documents and\ninformation as it has deemed appropriate to make its own credit analysis and\ndecision to enter into such Assignment and Acceptance; (iv) such assignee will,\nindependently and without reliance upon the Agent, the Issuing Bank, such\nassigning Lender or any other Lender and based on such documents and information\nas it shall deem appropriate at the time, continue to make its own credit\ndecisions in taking or not taking action under this Agreement; (v) such assignee\nconfirms that it is an Eligible Assignee; (vi) such assignee appoints and\nauthorizes the Agent or the Issuing Bank to take such action as agent on its\nbehalf and to exercise such powers under this Agreement as are delegated to the\nAgent or the Issuing Bank by the terms hereof, together with such powers as are\nreasonably incidental thereto; and (vii) such assignee agrees that it will\nperform in accordance with their terms all of the obligations which by the terms\nof this Agreement are required to be performed by it as a Lender.\n\n(c) The Agent shall maintain at its address referred to in Section 10.02 a copy\nof each Assignment and Acceptance delivered to and accepted by it and a register\nfor the recordation of the names and addresses of the Lenders and the LC\nCommitment of and A Commitment of, and principal amount of the Advances owing\nto, each Lender from time to time (the \"Register\"). The entries in the Register\n --------- \nshall be conclusive and binding for all purposes, absent manifest error, and the\nBorrower, the Agent and the Lenders may treat each Person whose name is recorded\nin the Register as a Lender hereunder for all purposes of this Agreement. The\nRegister shall be available for inspection by the Borrower or any Lender at any\nreasonable time and from time to time upon reasonable prior notice.\n\n(d) Upon its receipt of an Assignment and Acceptance executed by an assigning\nLender and an assignee representing that it is an Eligible Assignee, the Agent\nshall, if such Assignment and Acceptance has been completed and is in\nsubstantially the form of Exhibit B hereto, (i) accept such Assignment and\nAcceptance,\n\n \n(ii) record the information contained therein in the Register and (iii) give\nprompt notice thereof to the Borrower and the Issuing Bank.\n\n(e) Each Lender may assign or participate to one or more banks or other\nentities any B Advance held by it without regard to any of the restrictions\nplaced on assignments elsewhere in this Section 10.07 or this Agreement;\nprovided, that, any participation shall be made in accordance with subsection \n-------- ---- \n(f) hereof and provided, further, that any assignee of a B Advance that is not \n -------- ------- \nthen a Lender hereunder shall not be entitled to demand any payments under\nSection 2.08, 2.12 or 4.02 hereof and shall have no voting rights or other\nrights of a Lender hereunder other than the right to demand and receive interest\nand principal payments at the times when due with respect to the B Advance owned\nby it.\n\n(f) Each Lender may sell participations to one or more banks or other entities\nin or to all or a portion of its rights and obligations under this Agreement\n(including, without limitation, all or a portion of its A Commitment and LC\nCommitment and the Advances owing to it; provided, however, that (i) such \n -------- -------\nLender's obligations under this Agreement (including, without limitation, its A\nCommitment to the Borrower hereunder and LC Commitment) shall remain unchanged,\n(ii) such Lender shall remain solely responsible to the other parties hereto for\nthe performance of such obligations, (iii) such Lender shall remain the owner of\nany Advance for all purposes of this Agreement, and (iv) the Borrower, the\nIssuing Bank, the Agent and the other Lenders shall continue to deal solely and\ndirectly with such Lender in connection with such Lender's rights and\nobligations under this Agreement, provided, further, that, to the extent of any\n -------- -------\nsuch participation (unless otherwise stated therein and subject to the preceding\nproviso), the purchaser of such participation shall, to the fullest extent\n------- \npermitted by law, have the same rights and benefits hereunder as it would have\nif it were a Lender hereunder; and provided, further, that each such\n -------- ------- \nparticipation shall be granted pursuant to an agreement providing that the\npurchaser thereof shall not have the right to consent or object to any action by\nthe selling Lender (who shall retain such right) other than an action which\nwould (i) reduce principal of or interest on any Advance, any amount due\nhereunder with respect to the Letters of Credit or other amounts or fees in\nwhich such purchaser has an interest, (ii) postpone any date fixed for payment\nof principal of or interest on any such Advance, such amounts due with respect\nto Letters of Credit or other amounts or such fees, or (iii) extend the LC\nTermination Date or the Revolver Termination Date, as the case may be.\n\n(g) Upon written request of the Borrower to an A Lender, such A Lender shall,\nto the extent consistent with the policies of such A Lender, inform the Borrower\nof the Dollar amount of any Full Term Participation (as hereinafter defined)\nthat such A Lender has entered into; provided, however, that no A Lender shall \n -------- -------\nbe obligated to disclose such information if the disclosure thereof would\nconstitute a violation of law or regulation or violate any confidentiality\nagreement to which such A Lender is subject. For the purposes of this subsection\n(g), \"Full Term Participation\" means a participation by an A Lender to another\n ------------------------ \nPerson whereby such other Person has purchased (pursuant to a participation\nagreement) all or a portion of such A Lender's A Commitment from the effective\ndate of such participation agreement to the Revolver Termination Date.\n\n(h) Notwithstanding anything herein contained to the contrary, each Lender may\nassign any of its rights and obligations under this Agreement to any of its\nAffiliates without the consent of the Borrower or the Agent, provided that any\nLender so assigning to any of its Affiliates shall give prompt notice thereof to\nthe Borrower and the Agent; and each Lender or any of its Affiliates may assign\nany of its rights (including, without limitation, rights to payment of principal\nand\/or interest hereunder) under this Agreement to any Federal Reserve Bank\nwithout notice to or consent of the Borrower or the Agent.\n\nSECTION 10.08 Severability of Provisions. Any provision of this Agreement \n -------------------------- \nwhich is prohibited or unenforceable in any jurisdiction shall, as to such\njurisdiction, be ineffective to the extent of such prohibition or\nunenforceability without invalidating the remaining provisions hereof or\naffecting the validity or enforceability of such provision in any other\njurisdiction.\n\nSECTION 10.09 Independence of Provisions. All agreements and covenants\n -------------------------- \nhereunder shall be given independent effect such that if a particular action or\ncondition is prohibited by the terms of any such \n\n \nagreement or covenant, the fact that such action or condition would be permitted\nwithin the limitations of another agreement or covenant shall not be construed\nas allowing such action to be taken or condition to exist.\n\nSECTION 10.10 Confidentiality. Each Lender, the Issuing Bank and the Agent \n --------------- \nagrees that it will not disclose to any third party any written information\nmarked \"Confidential\" provided to it by the Borrower; provided, that, the\n ------------- -------- ---- \nforegoing will not (i) restrict the ability of the Agent, the Issuing Bank, the\nLenders and any loan participants from freely exchanging such information among\nthemselves (and their respective employees, attorneys, agents and advisors),\n(ii) restrict the ability to disclose such information to a prospective Eligible\nAssignee or participant, provided, that, such Eligible Assignee or participant\n -------- ---- \nexecutes a confidentiality agreement with the selling Lender agreeing to be\nbound by the terms hereof prior to disclosure of such information to such\nEligible Assignee or participant or (iii) prohibit the disclosure of such\ninformation to the extent such information (a) becomes publicly available, (b)\nbecomes available through a Person not a Subsidiary, (c) is required to be\ndisclosed pursuant to court order, subpoena, other legal process, regulatory\nrequest or otherwise by law or (d) is disclosed in litigation with the Borrower\nor any of its Subsidiaries.\n\nSECTION 10.11 Headings. Article and Section headings in this Agreement are\n -------- \nincluded for convenience of reference only and shall not constitute a part of\nthis Agreement for any other purpose.\n\nSECTION 10.12 Entire Agreement. This Agreement sets forth the entire agreement\n ---------------- \nof the parties with respect to its subject matter and, except for the letter\nagreement referred to in Sections 2.04(c) and 3.06(b), supersedes all previous\nunderstandings, written or oral, in respect thereof.\n\nSECTION 10.13 Execution in Counterparts. This Agreement may be executed in \n ------------------------- \nany number of counterparts and by different parties hereto in separate\ncounterparts, each of which when so executed shall be deemed to be an original\nand all of which taken together shall constitute one and the same agreement.\n\nSECTION 10.14 Consent to Jurisdiction. (a) Each of the parties hereto hereby\n ----------------------- \nirrevocably submits to the non-exclusive jurisdiction of any New York State or\nFederal court sitting in the County of New York, The City of New York, in any\naction or proceeding arising out of or relating to this Agreement, and each of\nthe parties hereby irrevocably agrees that all claims in respect of such action\nor proceeding may be heard and determined in such New York State court or such\nFederal court. Each of the parties hereby irrevocably agrees, to the fullest\nextent each may effectively do so, that each will not assert any defense that\nsuch courts do not have subject matter or personal jurisdiction of such action\nor proceeding or over any party hereto. Each of the parties hereby irrevocably\nconsents to the service of copies of the summons and complaint and any other\nprocess which may be served in any such action or proceeding by certified mail,\nreturn receipt requested, or by delivering of a copy of such process to such\nparty at its address specified in Section 10.02 or by any other method permitted\nby law. Each of the parties hereby agrees that a final judgment in any such\naction or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or by any other manner provided by law.\n\n(b) Nothing in this Section 10.14 shall affect the right of any of the parties\nhereto to serve legal process in any other manner permitted by law or affect the\nright of any of the parties to bring any action or proceeding against any of the\nparties or their property in the courts of other jurisdictions.\n\nSECTION 10.15 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND \n ------------- \nCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT, IN THE\nCASE OF ARTICLE III, TO THE EXTENT SUCH LAWS ARE INCONSISTENT WITH THE UCP.\n\nSECTION 10.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LC SUBSIDIARIES,\n -------------------- \nTHE AGENT, THE LENDERS AND THE ISSUING BANK HEREBY IRREVOCABLY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,\nPROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)\nARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ADVANCES OR THE LETTERS OF\nCREDIT, OR THE ACTIONS OF THE \n\n \nAGENT, ANY LENDER OR THE ISSUING BANK IN CONNECTION WITH THE NEGOTIATION,\nADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.\n\n \n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted by their respective officers thereunto duly authorized, as of the date\nfirst above written.\n\n THE BORROWER:\n ------------ \n\n THE GAP, INC.\n\n By \/s\/ Heidi Kunz\n ---------------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n\n \n THE LC SUBSIDIARIES:\n --------------------\n\n BANANA REPUBLIC, INC.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n\n OLD NAVY INC.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n\n BANANA REPUBLIC (CANADA) INC.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n \n OLD NAVY (CANADA) INC.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n\n GAP (CANADA) INC.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n\n \n GAP INTERNATIONAL SOURCING LIMITED\n\n\n By \/s\/ Warren R. Hashagen\n ----------------------------------\n Warren R. Hashagen\n Director\n\n\n GAP INTERNATIONAL SOURCING PTE. LTD.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Director\n\n\n GAP (JAPAN) K.K.\n\n\n By \/s\/ Warren R. Hashagen\n ----------------------------------\n Warren R. Hashagen\n Director\n\n\n GAP INTERNATIONAL SOURCING \n (HOLDINGS) LIMITED\n\n\n By \/s\/ Warren R. Hashagen\n ----------------------------------\n Warren R. Hashagen\n Director\n\n\n GAP (NETHERLANDS) B.V.\n\n\n By \/s\/ Warren R. Hashagen\n ----------------------------------\n Warren R. Hashagen\n Director\n\n \n GAP INTERNATIONAL B.V.\n\n\n By \/s\/ Warren R. Hashagen\n ----------------------------------\n Warren R. Hashagen\n Director\n\n\n GPS CONSUMER DIRECT, INC.\n\n\n By \/s\/ Heidi Kunz\n ----------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n \n\n \n THE AGENT:\n --------- \n\n CITICORP USA, INC.\n\n\n\n By \/s\/ J. Gregory Davis\n -----------------------------------\n J. Gregory Davis\n Vice President\n\n THE ARRANGER:\n ------------ \n\n SALOMON SMITH BARNEY, INC.\n\n\n\n By \/s\/ J. Gregory Davis\n -----------------------------------\n J. Gregory Davis\n Attorney-In-Fact\n\n \n THE SENIOR MANAGING AGENTS:\n -------------------------- \n\n BANK OF AMERICA, N.A.\n\n By \/s\/ Kimberly A. Whitney\n -----------------------------------\n Kimberly A. Whitney\n Managing Director\n\n HSBC BANK USA\n\n By \/s\/ John Rynne\n -----------------------------------\n John Rynne\n Vice President\n\n MORGAN GUARANTY TRUST\n COMPANY OF NEW YORK\n\n By \/s\/ Robert Bottamedi\n -----------------------------------\n Robert Bottamedi\n Vice President\n\n \n THE LENDERS:\n ----------- \n\n CITICORP USA INC.\n\n By \/s\/ Carolyn Wendler\n -----------------------------\n Carolyn Wendler\n Managing Director\n\n \n BANK OF AMERICA, N.A.\n\n By \/s\/ Kimberly A. Whitney\n ------------------------------\n Kimberly A. Whitney\n Managing Director\n\n \n HSBC BANK USA\n\n By \/s\/ John Rynne\n -------------------------------\n John Rynne\n Vice President\n\n \n MORGAN GUARANTY TRUST\n COMPANY OF NEW YORK\n\n By \/s\/ Robert Bottamedi\n -------------------------------\n Robert Bottamedi\n Vice President\n\n \n ABN AMRO BANK N.V.\n\n By \/s\/ John A. Miller\n ------------------------------\n John A. Miller\n Senior Vice President\n\n By \/s\/ Mitsoo Iravani\n ------------------------------\n Mitsoo Iravani\n Assistant Vice President\n\n \n DEUTSCHE BANK AG NEW YORK BRANCH \n AND\/OR CAYMAN ISLANDS BRANCH\n\n By \/s\/ Alexander Karow\n -------------------------------\n Alexander Karow\n Vice President\n\n By \/s\/ Sheryl L. Paynter\n -------------------------------\n Sheryl L. Paynter\n Vice President\n\n \n SOCIETE GENERALE\n\n By \/s\/ Carol Radice\n -------------------------------\n Carol Radice\n Vice President\n\n \n THE SUMITOMO BANK LIMITED\n\n By \/s\/ Azar Shakeri\n ---------------------------------\n Azar Shakeri\n Vice President and Manager\n\n \n BANK ONE, NA f\/k\/a THE FIRST NATIONAL \n BANK OF CHICAGO\n\n\n\n By \/s\/ Eva Drinis\n -------------------------------\n Eva Drinis\n Assistant Vice President\n\n \n FLEET NATIONAL BANK\n\n By \/s\/ Susan L. Pardus-Galland\n -------------------------------\n Susan L. Pardus-Galland\n Director\n\n \n WELLS FARGO BANK, NATIONAL \n ASSOCIATION\n\n By \/s\/ Lee Jensen\n -------------------------------\n Lee Jensen\n Vice President\n\n By \/s\/ June P. Hanson\n --------------------------------\n June P. Hanson\n Assistant Vice President\n\n \n THE BANK OF NEW YORK\n\n By \/s\/ Charlotte Sohn Fuiks\n -------------------------------\n Charlotte Sohn Fuiks\n Vice President\n\n \n THE FUJI BANK, LIMITED\n\n By \/s\/ Masahito Fukuda\n -------------------------------\n Masahito Fukuda\n Senior Vice President\n\n \n U.S. BANK NATIONAL ASSOCIATION\n\n By \/s\/ Janet Jordan\n ------------------------------\n Janet Jordan\n Vice President\n\n \n THE ISSUING BANK:\n ---------------- \n\n CITIBANK, N.A.\n\n By \/s\/ Carolyn Wendler\n -------------------------------\n Carolyn Wendler\n Managing Director\n\n \n Schedule I-A\n\n COMMITMENTS\n\n\n<\/pre>\n
\n\n———————————————————————————————————–
\nLender A Commitment ($) LC Commitment ($)
\n—— —————- —————–
\n———————————————————————————————————–
\n
\nCiticorp USA Inc. $ 79,111,111.11 $ 79,111,111.11
\n———————————————————————————————————–
\nBank of America, N.A. $ 62,222,222.22 $ 62,222,222.22
\n———————————————————————————————————–
\nHSBC Bank USA $ 62,222,222.22 $ 62,222,222.22
\n———————————————————————————————————–
\nMorgan Guaranty Trust Company of New York $ 40,000,000.00 $ 40,000,000.00
\n———————————————————————————————————–
\nABN AMRO Bank N.V. $ 62,222,222.22 $ 62,222,222.22
\n———————————————————————————————————–
\nDeutsche Bank AG New York Branch and\/or $ 33,333,333.33 $ 33,333,333.33
\n Cayman Islands Branch
\n———————————————————————————————————–
\nSociete Generale $ 28,888,888.89 $ 28,888,888.89
\n———————————————————————————————————–
\nThe Sumitomo Bank Limited $ 32,000,000.00 $ 32,000,000.00
\n———————————————————————————————————–
\nBank One, NA f\/k\/a The First National Bank $ 33,333,333.33 $ 33,333,333.33
\n of Chicago
\n———————————————————————————————————–
\nFleet National Bank $ 40,000,000.00 $ 40,000,000.00
\n———————————————————————————————————–
\nWells Fargo Bank, National Association $ 40,000,000.00 $ 40,000,000.00
\n———————————————————————————————————–
\nThe Bank of New York $ 28,888,888.89 $ 28,888,888.89
\n———————————————————————————————————–
\nThe Fuji Bank, Limited $ 28,888,888.89 $ 28,888,888.89
\n———————————————————————————————————–
\nU.S. Bank National Association $ 28,888,888.89 $ 28,888,888.89
\n———————————————————————————————————–
\nTOTAL $600,000,000.00 $600,000,000.00
\n———————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n Schedule I-B<\/p>\n
LIST OF APPLICABLE LENDING OFFICES<\/p>\n
\n\n———————————————————————————————————
\n Lender Domestic Lending Office Eurodollar Lending Office
\n —– ———————– ————————-
\n———————————————————————————————————
\n
\nCiticorp USA Inc.\/ 2 Penns Way 2 Penns Way
\nCitibank, N.A. New Castle, DE 19720 New Castle, DE 19720
\n Attn: Tim Smith Attn: Tim Smith
\n Tel: 302-894-6059 Tel: 302-894-6059
\n Fax: 302-894-6120 Fax: 302-894-6120
\n———————————————————————————————————
\nBank of America, N.A. 1850 Gateway Boulevard 1850 Gateway Boulevard
\n Concord, CA 94520 Concord, CA 94520
\n Attn: B. Manduk Attn: B. Manduk
\n Tel: 925-675-7537 Tel: 925-675-7537
\n Fax: 925-969-2855 Fax: 925-969-2855
\n———————————————————————————————————
\nHSBC Bank USA The Hongkong and Shanghai Banking The Hongkong and Shanghai Banking
\n Corporation Limited Corporation Limited,
\n 140 Broadway, 4\/th\/ Floor London Head Office
\n New York, NY 10005-1196 P.O. Box 199
\n Attn: Anastasia Micklethwaite 10 Lower Thames Street
\n Tel: 212-658-1403 London EC3R 6HH
\n Fax: 212-658-2804 United Kingdom
\n Attn: 3\/rd\/ Floor, Eurodollar
\n Lending Office
\n Fax: 011-44-171-260-0930
\n———————————————————————————————————
\nMorgan Guaranty Trust Company 60 Wall Street c\/o J.P. Morgan Services Inc.
\n of New York New York, NY 10260-0060 Euro-Loan Servicing Unit
\n Attn: Robert Bottamedi 500 Stenton Christiana Road
\n Tel: 212-648-5014 Newark, DE 19713
\n Fax: 212-648-1349 Attn: Jeannie Matson
\n Tel: 302-634-1938
\n Fax: 302-634-1852
\n———————————————————————————————————
\nABN AMRO Bank N.V. 208 South LaSalle, Suite 1500 208 South LaSalle, Suite 1500
\n Chicago, IL 60604-1003 Chicago, IL 60604-1003
\n Attn: John Miller Attn: John Miller
\n Tel: 312-992-5110 Tel: 312-992-5110
\n Fax: 312-992-5111 Fax: 312-992-5111
\n———————————————————————————————————
\nDeutsche Bank AG New York 31 West 52nd Street, 13\/th\/ Floor 1251 6\/th\/ Avenue, 26\/th\/ Floor
\n Branch and\/or Cayman Islands New York, NY 10019 New York, NY 10019
\n Branch Attn: Carmen Melendez Attn: Carmen Melendez
\n Tel: 212-469-4008 Tel: 212-469-4008
\n Fax: 212-469-4138 Fax: 212-469-4138
\n———————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n\n\n———————————————————————————————————
\n
\nSociete Generale 1221 Avenue of the Americas 1221 Avenue of the Americas
\n New York, NY 10020 New York, NY 10020
\n Attn: Angeline Quintana Attn: Angeline Quintana
\n Tel: 212-278-6872 Tel: 212-278-6872
\n Fax: 212-278-9490 Fax: 212-278-9490
\n———————————————————————————————————
\nThe Sumitomo Bank Limited 555 Californian Street, Suite 3350 555 Californian Street, Suite 3350
\n San Francisco, CA 94104 San Francisco, CA 94104
\n Attn: San Topham Attn: San Topham
\n Tel: 415-616-3026 Tel: 415-616-3026
\n Fax: 415-398-3580 Fax: 415-398-3580
\n———————————————————————————————————
\nBank One, NA f\/k\/a The First 1 Bank One Plaza 1 Bank One Plaza
\n National Bank of Chicago Chicago, IL 60670 Chicago, IL 60670
\n Attn: Medy Hernandez Attn: Medy Hernandez
\n Tel: (312) 732-8297 Tel: (312) 732-8297
\n Fax: (312) 732-4840 Fax: (312) 732-4840
\n———————————————————————————————————
\nFleet National Bank One Federal Street One Federal Street
\n Boston, MA 02110 Boston, MA 02110
\n Attn: Dwayne Nelson Attn: Dwayne Nelson
\n Tel: 617-346-4223 Tel: 617-346-4223
\n Fax: 617-346-0595 Fax: 617-346-0595
\n———————————————————————————————————
\nWells Fargo Bank, National 420 Montgomery Street, 9\/th\/ Floor 420 Montgomery Street, 9\/th\/ Floor
\nAssociation San Francisco, CA 94104 San Francisco, CA 94104
\n Attn: Judy Chan Attn: Judy Chan
\n Tel: 415-477-5433 Tel: 415-477-5433
\n Fax: 415-979-0675 Fax: 415-979-0675
\n———————————————————————————————————
\nThe Bank of New York One Wall Street, 8\/th\/ Floor One Wall Street, 8\/th\/ Floor
\n New York, NY 10286 New York, NY 10286
\n Attn: Madlyn Myrick Attn: Madlyn Myrick
\n Tel: 212-635-1366 Tel: 212-635-1366
\n Fax: 212-635-1481 Fax: 212-635-1481
\n———————————————————————————————————
\nThe Fuji Bank, Limited 333 South Hope Street, 39\/th\/ Floor 333 South Hope Street, 39\/th\/ Floor
\n Los Angeles, CA 90071-1406 Los Angeles, CA 90071-1406
\n Attn: Tami Kita Attn: Tami Kita
\n Tel: 213-253-4163 Tel: 213-253-4163
\n Fax: 213-253-4178 Fax: 213-253-4178
\n———————————————————————————————————
\nU.S. Bank National Association 555 S.W. Oak Street, PL-4 555 S.W. Oak Street, PL-4
\n Portland, Oregon 97204 Portland, Oregon 97204
\n Attn: Jan Knox Attn: Jan Knox
\n Tel: 503-275-6561 Tel: 503-275-6561
\n Fax: 503-275-4600 Fax: 503-275-4600
\n———————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n Schedule II<\/p>\n
EXISTING LIENS<\/p>\n
None<\/p>\n
Schedule III<\/p>\n
CHANGE OF CONTROL<\/p>\n
1. Donald G. Fisher<\/p>\n
2. Doris Fisher<\/p>\n
3. Millard S. Drexler<\/p>\n
4. Any person related by blood or marriage to any of the foregoing persons and
\n any trust as to which any of such persons has beneficial ownership of the
\n assets of the trust.<\/p>\n
5. The executive officers of The Gap, Inc. as of June 27, 2000.<\/p>\n
Schedule IV<\/p>\n
OUTSTANDING BALANCE OF EXISTING LETTERS OF CREDIT<\/p>\n
$1,042,314,259.00<\/p>\n
Schedule V<\/p>\n
LC SUBSIDIARIES
\n (As of date of this Agreement)<\/p>\n
1. Banana Republic, Inc.<\/p>\n
2. Old Navy Inc.<\/p>\n
3. Banana Republic, (Canada) Inc.<\/p>\n
4. Old Navy (Canada) Inc.<\/p>\n
5. Gap (Canada) Inc.<\/p>\n
6. Gap International Sourcing Limited<\/p>\n
7. Gap International Sourcing Pte. Ltd.<\/p>\n
8. Gap (Japan) K.K.<\/p>\n
9. Gap International Sourcing (Holdings) Limited<\/p>\n
10. Gap (Netherlands) B.V.<\/p>\n
11. Gap (International) B.V.<\/p>\n
12. GPS Consumer Direct, Inc.<\/p>\n
Schedule VI<\/p>\n
PERMITTED INVESTMENTS<\/p>\n
1. Obligations issued or guaranteed by the United States Government.<\/p>\n
2. Commercial paper of issuers having a rating of P-1 by Moodys or A-1 by S&P.<\/p>\n
3. Banker’s acceptances, certificates of deposit and eurodollar time deposits
\n (including bank money market funds) from commercial banks with commercial
\n paper ratings (or equivalent long-term debt ratings) as specified in 2
\n above.<\/p>\n
4. Tax-exempt securities rated Aaa by Moodys or AAA by S&P or Aa by Moodys or
\n AA by S&P or A by Moodys or A by S&P.<\/p>\n
5. Secured repurchase agreements involving any of the instruments referred to
\n in 1-4 above and having the ratings specified in 1-4 above, as applicable,
\n with an institution or institutions whose commercial paper (or long term
\n debt rating) satisfies the criteria specified in 2 above.<\/p>\n
6. Money market preferred stock (not issued by a thrift, saving and loans
\n institution or analogous institution) rated Aaa by Moodys or AAA by S&P.<\/p>\n
7. Loan participations purchased from major money center banks provided the
\n borrower associated with such participation has a long-term debt rating of
\n P-1 by Moodys or A-1 by S&P.<\/p>\n
Moodys = Moody’s Investors Service, Inc.
\n S&P = Standard & Poor’s Ratings Services, a division of the McGraw-Hill
\n Companies, Inc. <\/p>\n
Schedule VII<\/p>\n
PLANS:<\/p>\n
GapShare Plan<\/p>\n
Employee Benefit Premium Payment Plan – (Pre-tax employee contributions under
\nmedical, dental plans)<\/p>\n
Life Insurance and Accidental Death and Dismemberment Plan<\/p>\n
Health Insurance Plan (HMOs and Employee Assistance Plan)<\/p>\n
Short Term Disability Plan<\/p>\n
Long Term Disability Plan<\/p>\n
Tuition Reimbursement Program<\/p>\n
Vision Care Plan<\/p>\n
Gap Inc. Medical and Dental Plans<\/p>\n
EXHIBIT A-1<\/p>\n
NOTICE OF A BORROWING<\/p>\n
Citicorp USA Inc., as Agent
\n for the Lenders parties
\n to the Credit Agreement
\n referred to below<\/p>\n
[Date]<\/p>\n
Attention:
\nLadies and Gentlemen:<\/p>\n
The undersigned, The Gap, Inc., refers to the Second Amended and Restated Credit
\nAgreement, dated as of _____ __, 2000 (as amended, restated, supplemented or
\notherwise modified from time to time, the “Credit Agreement”, the terms defined
\n —————–
\ntherein being used herein as therein defined), among the undersigned, certain of
\nthe undersigned’s Subsidiaries, certain Lenders parties thereto, Citibank, N.A.,
\nas Issuing Bank, certain Senior Managing Agents parties thereto, Salomon Smith
\nBarney Inc. as Arranger, and Citicorp USA Inc., as Agent for said Lenders, and
\nthe Issuing Bank, and hereby gives you notice, irrevocably, pursuant to Section
\n2.02 of the Credit Agreement that the undersigned hereby requests an A Borrowing
\nunder the Credit Agreement, and in that connection sets forth below the
\ninformation relating to such A Borrowing (the “Proposed A Borrowing”) as
\n ———————
\nrequired by Section 2.02(a) of the Credit Agreement:<\/p>\n
(i) The Business Day of the Proposed A Borrowing is ___________,
\n ____.<\/p>\n
(ii) The Type of A Advances comprising the Proposed A Borrowing is
\n [Base Rate Advances] [Eurodollar Rate Advances].<\/p>\n
(iii) The aggregate amount of the Proposed A Borrowing is
\n $___________.<\/p>\n
(iv) The Interest Period for each A Advance made as part of the
\n Proposed A Borrowing is [____ month[s]].<\/p>\n
The undersigned hereby certifies that the following statements are true on the
\ndate hereof, and will be true on the date of the Proposed A Borrowing:
\n (A) the representations and warranties contained in Section 6.01 of
\n the Credit Agreement are correct, before and after giving effect to the
\n Proposed A Borrowing and to the application of the proceeds therefrom, as
\n though made on and as of such date; and<\/p>\n
(B) no event has occurred and is continuing, or would result from
\n such Proposed A Borrowing or from the application of the proceeds
\n therefrom, which constitutes an Event of Default or Default.<\/p>\n
Very truly yours,<\/p>\n
THE GAP, INC.<\/p>\n
By ____________________________________________
\n Name:
\n Title:<\/p>\n
EXHIBIT A-2<\/p>\n
NOTICE OF B BORROWING<\/p>\n
Citicorp USA Inc., as Agent
\n for the Lenders parties
\n to the Credit Agreement
\n referred to below<\/p>\n
[Date]<\/p>\n
Attention:
\nLadies and Gentlemen:<\/p>\n
The undersigned, The Gap, Inc., refers to the Second Amended and Restated Credit
\nAgreement, dated as of _______ __, 2000 (as amended, restated, supplemented or
\notherwise modified from time to time, the “Credit Agreement”, the terms defined
\n —————–
\ntherein being used herein as therein defined), among the undersigned, certain of
\nthe undersigned’s Subsidiaries, certain Lenders parties thereto, Citibank, N.A.,
\nas Issuing Bank, certain Senior Managing Agents parties thereto, Salomon Smith
\nBarney Inc. as Arranger, and Citicorp USA Inc., as Agent for said Lenders, and
\nthe Issuing Bank, and hereby gives you notice pursuant to Section 2.03 of the
\nCredit Agreement that the undersigned hereby requests a B Borrowing under the
\nCredit Agreement, and in that connection sets forth the terms on which such B
\nBorrowing (the “Proposed B Borrowing”) is requested to be made:
\n ——————— <\/p>\n
(A) Date of B Borrowing ________
\n(B) Amount of B Borrowing ________
\n(C) Maturity Date _________
\n(D) Interest Rate Basis _________
\n(E) Interest Payment Date(s)________
\n(F)
\n(G)
\n(H)<\/p>\n
The undersigned hereby certifies that the following statements are true on the
\ndate hereof, and will be true on the date of the Proposed B Borrowing:<\/p>\n
(a) the representations and warranties contained in Section 6.01 of
\n the Credit Agreement are correct, before and after giving effect to the
\n Proposed B Borrowing and to the application of the proceeds therefrom, as
\n though made on and as of such date;<\/p>\n
(b) no event has occurred and is continuing, or would result from
\n the Proposed B Borrowing or from the application of the proceeds therefrom,
\n which constitutes an Event of Default or Default;<\/p>\n
(c) no event has occurred and no circumstance exists as a result of
\n which the information concerning the undersigned that has been provided to
\n the Agent and each Lender by the undersigned in connection with the Credit
\n Agreement would, taken as a whole, include an untrue statement of a
\n material fact or omit to state any material fact or any fact necessary to
\n make <\/p>\n
the statements contained therein, in the light of the circumstances under
\n which they were made, not misleading; and<\/p>\n
(d) the aggregate amount of the Proposed B Borrowing and all other
\n Borrowings to be made on the same day under the Credit Agreement is within
\n the aggregate amount of the unused A Commitments of the A Lenders.<\/p>\n
The undersigned hereby confirms that the Proposed B Borrowing is to be made
\navailable to it in accordance with Section 2.03(a)(v) of the Credit Agreement.<\/p>\n
Very truly yours,<\/p>\n
THE GAP, INC.<\/p>\n
By ____________________________
\n Name:
\n Title:<\/p>\n
EXHIBIT B<\/p>\n
ASSIGNMENT AND ACCEPTANCE<\/p>\n
Dated _________,<\/p>\n
Reference is made to the Second Amended and Restated Credit Agreement, dated as
\nof ________ __, 2000 (the “Credit Agreement”), among The Gap, Inc., a Delaware
\n —————–
\ncorporation (the “Borrower”), certain Subsidiaries of the Borrower, as “LC
\n ——— —
\nSubsidiaries”, the Lenders (as defined in the Credit Agreement), Citibank, N.A.,
\n————-
\nas Issuing Bank, certain Senior Managing Agents parties thereto, Salomon Smith
\nBarney Inc. as Arranger, and Citicorp USA Inc., as Agent for the Lenders and
\nIssuing Bank (the “Agent”). Terms defined in the Credit Agreement are used
\n ——
\nherein with the same meaning.<\/p>\n
__________ (the “Assignor”) and ____________(the “Assignee”) agree as follows:<\/p>\n
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
\nhereby purchases and assumes from the Assignor, such respective interests in and
\nto all of the Assignor’s rights and obligations under the Credit Agreement as of
\nthe date hereof (other than in respect of B Advances) which represent the
\nrespective percentage interests specified on Schedule 1 of all outstanding
\nrights and obligations under the Credit Agreement (other than in respect of B
\nAdvances) in respect of (i) the Assignor’s A Commitment and the A Advances owing
\nto the Assignor and\/or (ii) the LC Commitment and participations in Letter of
\nCredit Liability of the Assignor. After giving effect to such sale and
\nassignment, (x) the Assignee’s A Commitment and the amount of the A Advances
\nowing to the Assignee and (y) such Assignee’s LC Commitment and participations
\nin Letter of Credit Liability will be as set forth, respectively, in Section 2
\nof Schedule 1.<\/p>\n
2. The Assignor (i) represents and warrants that it is the legal and
\nbeneficial owner of the interests being assigned by it hereunder and that such
\ninterests are free and clear of any adverse claim; (ii) makes no representation
\nor warranty and assumes no responsibility with respect to any statements,
\nwarranties or representations made in or in connection with the Credit Agreement
\nor the execution, legality, validity, enforceability, genuineness, sufficiency
\nor value of the Credit Agreement or any other instrument or document furnished
\npursuant thereto and (iii) makes no representation or warranty and assumes no
\nresponsibility with respect to the financial condition of the Borrower or any LC
\nSubsidiary or the performance or observance by the Borrower or any LC Subsidiary
\nof any of its respective obligations under the Credit Agreement or any other
\ninstrument or document furnished pursuant thereto.<\/p>\n
3. The Assignee (i) confirms that it has received a copy of the Credit
\nAgreement, together with copies of the financial statements referred to in
\nSection 6.01 thereof and such other documents and information as it has deemed
\nappropriate to make its own credit analysis and decision to enter into this
\nAssignment and Acceptance; (ii) agrees that it will, independently and without
\nreliance upon the Agent, the Issuing Bank, the Assignor or any other Lender and
\nbased on such documents and information as it shall deem appropriate at the
\ntime, continue to make its own credit decisions in taking or not taking action
\nunder the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
\nappoints and authorizes the Agent and the Issuing Bank to take such action on
\nits behalf and to exercise such powers under the Credit Agreement as are
\ndelegated to the Agent and the Issuing Bank by the terms thereof, together with
\nsuch powers as are reasonably incidental thereto; (v) agrees that it will
\nperform in accordance with their terms all of the obligations which by the terms
\nof the Credit Agreement are required to be performed by it as a Lender; [and]
\n(vi) specifies as its Domestic Lending Office (and address for notices) and
\nEurodollar Lending Office the offices set forth beneath its name on the
\nsignature pages hereof [and (vii) attaches the forms prescribed by the Internal
\nRevenue Service of the United States certifying as to the Assignee’s status for
\npurposes of <\/p>\n
determining exemption from United States withholding taxes with respect to all
\npayments to be made to the Assignee under the Credit Agreement or such other
\ndocuments as are necessary to indicate that all such payments are subject to
\nsuch rates at a rate reduced by an applicable tax treaty].*<\/p>\n
4. Following the execution of this Assignment and Acceptance by the Assignor
\nand the Assignee, it will be delivered to the Agent for acceptance and recording
\nby the Agent. The effective date of this Assignment and Acceptance shall be the
\ndate of acceptance thereof by the Agent, unless otherwise specified on Schedule
\n1 hereto (the “Effective Date”).
\n ————— <\/p>\n
5. Upon such acceptance and recording by the Agent, as of the Effective Date,
\n(i) the Assignee shall be a party to the Credit Agreement and, to the extent
\nprovided in this Assignment and Acceptance, have the rights and obligations of a
\nLender thereunder and (ii) the Assignor shall, to the extent provided in this
\nAssignment and Acceptance, relinquish its rights and be released from its
\nobligations under the Credit Agreement.<\/p>\n
6. Upon such acceptance and recording by the Agent, from and after the
\nEffective Date, the Agent shall make (and shall direct the Issuing Bank to make)
\nall payments under the Credit Agreement in respect of the interests assigned
\nhereby (including, without limitation, all payments of principal, interest and
\nutilization fees, facility fees and letter of credit facility fees with respect
\nthereto) to the Assignee. The Assignor and Assignee shall make all appropriate
\nadjustments in payments under the Credit Agreement for periods prior to the
\nEffective Date directly between themselves.<\/p>\n
7. This Assignment and Acceptance shall be governed by, and construed in
\naccordance with, the laws of the State of New York.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
\nAcceptance to be executed by their respective officers thereunto duly
\nauthorized, as of the date first above written, such execution being made on
\nSchedule 1 hereto.<\/p>\n
_____________
\n* If the Assignee is organized under the laws of a jurisdiction outside the
\nUnited States.<\/p>\n
Schedule 1
\n to
\n Assignment and Acceptance
\n Dated _____,<\/p>\n
Section 1.<\/p>\n
Percentage Interest in A Commitment and A Advances: __
\nPercentage Interest in LC Commitment and participations in Letter of
\nCredit Liability: __
\nSection 2.<\/p>\n
Assignee’s A Commitment: $_
\nAssignee’s LC Commitment $_
\nAggregate outstanding principal amount of A Advances owing to Assignee: $_
\nAggregate outstanding amount of Assignee’s
\nparticipations in Letter of Credit Liability: $_
\nSection 3.<\/p>\n
Effective Date*: _________ , ____<\/p>\n
[NAME OF ASSIGNOR]<\/p>\n
By:______________________________
\n Title:<\/p>\n
[NAME OF ASSIGNEE]<\/p>\n
By:______________________________
\n Title:<\/p>\n
Domestic Lending Office (and
\n address for notices):
\n [Address]<\/p>\n
Eurodollar Lending Office:
\n [Address]<\/p>\n
_____________
\n* This date should be no earlier than the date of acceptance by the Agent.<\/p>\n
Accepted this ____ day
\nof ,<\/p>\n
CITICORP USA, INC., as Agent<\/p>\n
By:_________________________
\n Title:<\/p>\n
EXHIBIT E-1<\/p>\n
FORM OF A BORROWING PROMISSORY NOTE<\/p>\n
$_______________ Dated: _________ __, ____<\/p>\n
FOR VALUE RECEIVED, the undersigned, The Gap, Inc., a Delaware corporation (the
\n“Borrower”), HEREBY PROMISES TO PAY to the order of [_________________________]
\n(the “Lender”) for the account of its Applicable Lending Office on the Revolver
\nTermination Date (as those terms are defined in the Credit Agreement referred to
\nbelow) the aggregate principal amount of the A Advances (as defined below) owing
\nto the Lender by the Borrower pursuant to the Second Amended and Restated Credit
\nAgreement dated as of _____ __, 2000 (as amended, amended and restated,
\nsupplemented or otherwise modified from time to time, the “Credit Agreement”;
\nterms defined therein, unless otherwise defined herein, being used herein as
\ntherein defined), among the Borrower, certain subsidiaries of the Borrower, the
\nLender and certain other banks and financial institutions party thereto as
\nLenders, Citibank, N.A., as Issuing Bank, Bank of America, N.A., HSBC Bank USA
\nand Morgan Guaranty Trust Company of New York, as Senior Managing Agents,
\nSalomon Smith Barney Inc., as Arranger, and Citicorp USA Inc. (“CUSA”), as
\nAgent.<\/p>\n
The Borrower also promises to pay interest on the unpaid principal amount of
\neach A Advance from the date of such A Advance until such principal amount is
\npaid in full, at such interest rates, and payable at such times, as are
\nspecified in the Credit Agreement. Both principal and interest are payable in
\nlawful money of the United States of America to CUSA, as Agent, at 399 Park
\nAvenue, New York, New York 10043 (or at such other address as the Agent may
\nspecify to the Borrower in writing) in same day funds, free and clear of and
\nwithout any deduction, with respect to the payee named above, subject to Section
\n4.02 of the Credit Agreement, for any and all present and future taxes,
\ndeductions, charges or withholdings, and all liabilities with respect thereto.<\/p>\n
The Lender is authorized to record the date of each A Advance or Conversion or
\ncontinuation thereof, each payment or prepayment of principal with respect
\nthereto and, in the case of Eurodollar Rate Advances, each Interest Period and
\nthe interest rate applicable thereto, in the Lender’s internal records and,
\nprior to any transfer hereof, on a schedule annexed hereto and made a part
\nhereof, and any such notation shall constitute prima facie evidence of the
\naccuracy of the information so recorded.<\/p>\n
This Promissory Note is issued pursuant to Section 2.02(f) of, and is entitled
\nto the benefits of, the Credit Agreement. The Credit Agreement, among other
\nthings, (i) provides for the making of advances (the “A Advances”) by the Lender
\nto the Borrower from time to time in an aggregate amount not to exceed at any
\ntime outstanding the U.S. dollar amount first above mentioned, the indebtedness
\nof the Borrower resulting from each such A Advance being evidenced by this
\nPromissory Note, and (ii) contains provisions for acceleration of the maturity
\nhereof upon the happening of certain stated events and also for prepayments on
\naccount of principal hereof prior to the maturity hereof upon the terms and
\nconditions therein specified.<\/p>\n
The Borrower hereby waives presentment, demand, protest and notice of any kind.
\nNo failure to exercise, and no delay in exercising, any rights hereunder on the
\npart of the holder hereof shall operate as a waiver of such rights.<\/p>\n
This Promissory Note shall be governed by, and construed in accordance
\nwith, the laws of the State of New York, United States, without reference to
\nprinciples of conflicts of laws other than New York General Obligations Law (S)
\n5-1401.<\/p>\n
THE GAP, INC.<\/p>\n
By_______________________________
\n Title:<\/p>\n
EXHIBIT E-2<\/p>\n
FORM OF AUCTION BORROWING NOTE<\/p>\n
$ ___________ Dated: ____________, ____<\/p>\n
FOR VALUE RECEIVED, the undersigned, THE GAP, INC., a Delaware corporation (the
\n“Borrower”), HEREBY PROMISES TO PAY to the order of ____________________ (the
\n ———
\n“Lender”) for the account of its Applicable Lending Office (as defined in the
\n——–
\nCredit Agreement referred to below), on _________, ____, the principal amount of
\n_______________________ Dollars ($ ________).<\/p>\n
The Borrower promises to pay interest on the unpaid principal amount hereof from
\nthe date hereof until such principal amount is paid in full, at the interest
\nrate and payable on the interest payment date or dates provided below:<\/p>\n
Interest Rate: _____% per annum (calculated on the basis of a year of
\n _____ days for the actual number of days elapsed).<\/p>\n
[Insert variable calculation if applicable]<\/p>\n
Interest Payment Date or Dates: ________________________________________<\/p>\n
Both principal and interest are payable in lawful money of the United States of
\nAmerica to ___________________________ for the account of the Lender at the
\noffice of ____________________________, at_________________________________, in
\nsame day funds, free and clear of and without any deduction, with respect to the
\npayee named above, subject to Section 4.02 of the Credit Agreement referred to
\nbelow, for any and all present and future taxes, deductions, charges or
\nwithholdings, and all liabilities with respect thereto.<\/p>\n
This Promissory Note is one of the promissory notes referred to in Section
\n2.03(f) of the Second Amended and Restated Credit Agreement, dated as of
\n_________, 2000, among the Borrower, the Lenders party thereto, Citibank, N.A.,
\nas Issuing Bank, certain Senior Managing Agents parties thereto, Salomon Smith
\nBarney Inc., as Arranger, and Citicorp USA Inc., as Agent for the Lender and
\nsuch other Lenders and the Issuing Bank (such Credit Agreement, as it may be
\namended, restated or otherwise modified, being the “Credit Agreement”). The
\n —————–
\nCredit Agreement, among other things, contains provisions for acceleration of
\nthe maturity hereof upon the happening of certain stated events.<\/p>\n
The Borrower hereby waives presentment, demand, protest and notice of any kind.
\nNo failure to exercise, and no delay in exercising, any rights hereunder on the
\npart of the holder hereof shall operate as a waiver of such rights.<\/p>\n
This Promissory Note shall be governed by, and construed in accordance
\nwith, the laws of the State of New York, United States, without reference to
\nprinciples of conflicts of laws other than New York General Obligations Law (S)
\n5-1401.<\/p>\n
THE GAP, INC.<\/p>\n
By_____________________________
\n Name:
\n Title:<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7104,7600],"corporate_contracts_industries":[9415,9494],"corporate_contracts_types":[9561,9560],"class_list":["post-40859","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-citigroup-inc","corporate_contracts_companies-gap-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-retail__clothing","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40859","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40859"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40859"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40859"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40859"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}