{"id":40864,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/150-million-amended-and-restated-credit-agreement-the-gap.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"150-million-amended-and-restated-credit-agreement-the-gap","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/150-million-amended-and-restated-credit-agreement-the-gap.html","title":{"rendered":"$150 Million Amended and Restated Credit Agreement – The Gap, Inc., Citicorp USA Inc., and Other Banks"},"content":{"rendered":" U.S. $150,000,000\n\n\n 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 BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN\n\n\n as Banks,\n -------- \n\n and\n\n CITICORP USA, INC.\n\n as Agent\n --------\n\n for the Banks and the\n other Lenders from time to time party hereto\n\n\n \n\n AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 27, 2000 (this\n\"Agreement\"), among The Gap, Inc., a Delaware corporation (the \"Borrower\"), the\n --------- -------- \nbanks and financial institutions (the \"Banks\") listed on the signature pages\n ----- \nhereof and Citicorp USA, Inc. (\"CUSA\"), as agent (the \"Agent\") for the Lenders\n ---- ----- \n(as hereinafter defined) hereunder:\n\nPRELIMINARY STATEMENTS:\n---------------------- \n\n(1) The Borrower, certain of its subsidiaries, certain banks and financial\ninstitutions and the Agent entered into a Credit Agreement dated as of July 1,\n1997 (as amended by the First Letter Amendment dated as of June 30, 1998, the\n\"Original Agreement\")\n\n(2) The Borrower, the Banks, the Lenders and the Agent desire to amend and\nrestate the Original Agreement as set forth below.\n\nNOW THEREFORE, the Borrower, the Banks, the Lenders from time to time party\nhereto and the Agent agree 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 \"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 hereof under the caption' A\n -\n Commitment' or, if such A Lender has entered into one or more Assignment\n ---------- \n and Acceptances, the amount set forth for such A Lender with respect\n thereto in the Register maintained by the Agent pursuant to Section 9.07\n hereof, in each case as such amount may be reduced pursuant to Section\n 2.05.\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 \"Anniversary Date\" means June 30 in each calendar year occurring\n ---------------- \n during the term of this Agreement.\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 \n\n \n office of such Lender notified by such Lender to the Agent as its\n Applicable Lending Office with respect 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, N.A.\n (\"Citibank\") in New York, New York, from time to time, as Citibank's\n 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 effectuated among member banks of the\n Federal Reserve System through use of the fedwire funds transfer system and\n if the applicable Business Day relates to any Eurodollar Rate Advances, a\n day on which dealings are carried on in the London interbank market.\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 \n\n \n accounting principles, be required to be accounted for as a capital lease\n on the balance sheet of such Person.\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), directly or indirectly, of securities of the Borrower (or other\n securities convertible into such securities) representing 50% or more of\n the combined voting power of all securities of the Borrower entitled to\n vote in the election of directors; or (ii) during any period of up to 24\n consecutive months, commencing before or after the date of this Agreement,\n individuals who at the beginning of such 24-month period were directors of\n the Borrower ceasing for any reason to constitute a majority of the Board\n of Directors of the Borrower unless the Persons replacing such individuals\n were nominated by the Board of Directors of the Borrower; or (iii) any\n Person or two or more Persons acting in concert acquiring by contract or\n otherwise, or entering into a contract or arrangement which upon\n 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 IV hereto or any group of Persons in which one or\n more of the Persons listed on Schedule IV are members.\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 5.01(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 \"CP Rating\" means, as of any date, the higher of the ratings that have\n --------- \n been most recently announced by either S&P or Moody's, as the case may be,\n for any class of non-credit enhanced commercial paper debt issued by the\n Borrower. For purposes of the foregoing, (a) if only one of S&P and\n Moody's shall have in effect a CP Rating, the Eurodollar Rate Margin and\n the Facility Fee Percentage may be determined by reference to the available\n rating; (b) if any rating established by S&P or Moody's shall be changed,\n such change shall be effective as of the date on which such change is first\n announced publicly by the rating agency making such change; and (c) if S&P\n or Moody's shall change the basis on which ratings are established, each\n reference to the CP Rating announced by S&P or Moody's, as the case may be,\n shall refer to the then equivalent rating by S&P or Moody's, as the case\n may be.\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 \n\n \n services, (ii) all obligations of such Person in connection with any\n agreement to purchase, redeem, exchange, convert or otherwise acquire for\n value any capital stock of such Person or to purchase, redeem or acquire\n for value any warrants, rights or options to acquire such capital stock,\n now or hereafter outstanding, (iii) all obligations of such Person\n evidenced by bonds, notes, debentures, convertible debentures or other\n similar instruments, (iv) all indebtedness created or arising under any\n conditional sale or other title retention agreement (other than under any\n such agreement which constitutes or creates an account payable incurred in\n the 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 \"Debt Rating\" means, as of any date, the higher of the ratings that\n ----------- \n have been most recently announced by either S&P or Moody's, as the case may\n be, for any class of long-term senior unsecured non-credit enhanced debt\n issued by the Borrower. For purposes of the foregoing, (a) if only one of\n S&P and Moody's shall have in effect a Debt Rating, the Eurodollar Rate\n Margin and the Facility Fee Percentage may be determined by reference to\n the available rating; (b) if any rating established by S&P or Moody's shall\n be changed, such change shall be effective as of the date on which such\n change is first announced publicly by the rating agency making such change;\n and (c) if S&P or Moody's shall change the basis on which ratings are\n established, each reference to the Debt Rating announced by S&P or Moody's,\n as the case may be, shall refer to the then equivalent rating by S&P or\n Moody's, as the case may be.\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 II hereto or in the Assignment and Acceptance pursuant\n to which it became a Lender, 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 \"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 \"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 \n\n \n commercial bank organized under the laws of any other country which is a\n member of the OECD or has concluded special lending arrangements with the\n International Monetary Fund associated with its General Arrangements to\n Borrow, or a political subdivision of any such country, and having Total\n Assets in excess of $10,000,000,000; provided, that, such bank is acting \n -------- ---- \n through a branch or agency located in the United States; (iii) the central\n bank of any country which is a member of the OECD; (iv) any Bank or Lender\n or Affiliate of a Bank or Lender; (v) a finance company, insurance company\n or other financial institution or fund (whether a corporation, partnership\n or other entity) which is engaged in making, purchasing or otherwise\n investing in commercial loans in the ordinary course of its business, and\n having Total Assets in excess of $10,000,000,000; and (vi) any other Person\n mutually acceptable to the 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 II hereto or in the Assignment and Acceptance pursuant\n to which it became a Lender (or, if no such office is specified, its\n 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 \"Eurodollar Rate Advance\" means an A Advance which bears interest as\n ----------------------- \n provided in Section 2.07(b).\n\n \n \"Eurodollar Rate Margin\" means, as of any date, a percentage per annum\n ---------------------- \n determined by reference to the highest of the Debt Rating or the CP Rating,\n as the case may be, in effect on such date as set forth below:\n\n \n --------------------------------------------------------\n Debt Rating or CP Eurodollar Rate Margin \n Rating for Eurodollar Rate \n S&P\/Moody's Advances \n --------------------------------------------------------\n Level 1 \n ------- \n \n Debt Rating: \n ----------- \n A+ or above or A1 or above .13% \n --------------------------------------------------------\n Level 2 \n ------- \n \n Debt Rating: \n ----------- \n below A+ but at least \n A- or below A1 but at \n least A3 \n \n or \n \n CP Rating: \n --------- \n A1 or P1 .155% \n --------------------------------------------------------\n Level 3 \n ------- \n \n Debt Rating: \n ----------- \n below A- but at least \n BBB- or below A3 \n but at least Baa3 \n \n or \n \n CP Rating: \n --------- \n below A1 or below \n P1 .21% \n --------------------------------------------------------\n Level 4 \n ------- \n \n Debt Rating: \n ----------- \n none for S&P or \n Moody's or \n \n below BBB- or \n below Baa3 \n \n and \n \n CP Rating: \n --------- \n None from S&P or \n Moody's .31% \n --------------------------------------------------------\n\n \n\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 7.01.\n ----------------- \n\n \"Facility Fee Percentage\" means, as of any date, a percentage per\n ----------------------- \n annum determined by reference to the highest of the Debt Rating or the CP\n Rating, as the case may be, as set forth below:\n\n --------------------------------------------------\n Debt Rating or CP \n Rating Facility Fee \n S&P\/Moody's \n --------------------------------------------------\n Level 1 \n ------- \n \n Debt Rating: \n ----------- \n A+ or above or A1 or above .06% \n --------------------------------------------------\n Level 2 \n ------- \n \n Debt Rating: \n ----------- \n below A+ but at least \n A- or below A1 but \n at least A3 \n \n or \n \n CP Rating: \n --------- \n A1 or P1 .07% \n --------------------------------------------------\n Level 3 \n ------- \n \n Debt Rating: \n ----------- \n below A- but at least \n BBB- or below A3 \n but at least Baa3 \n \n or \n \n CP Rating: \n --------- \n below A1 or below \n P1 .115% \n --------------------------------------------------\n \n\n \n ----------------------------------------\n Level 4 \n ------- \n \n Debt Rating: \n ----------- \n none for S&P or \n Moody's or \n \n below BBB- or \n below Baa3 \n \n and \n \n CP Rating: \n --------- \n None from S&P or \n Moody's .19% \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 5.01(e).\n\n \"Fiscal Year\" means a fiscal year of the Borrower and its\n ----------- \n Subsidiaries.\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 accrued by such Person during such period,\n determined in accordance with 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 \n\n \n ending on the last day of the period selected by the Borrower pursuant to\n the provisions below. The duration of each such Interest Period shall be 1,\n 2, 3 or 6 months in the case of a Eurodollar Rate Advance, in each case as\n the Borrower may, upon notice received by the Agent not later than 12:00\n noon (New York City time) on the third Business Day prior to the first day\n of such Interest Period, select; provided, 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\n Advances comprising part of the same A Borrowing shall be of the same\n 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 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 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 \"Lenders\" means the Banks listed on the signature pages hereof and\n ------- \n each Eligible Assignee that shall become a party hereto pursuant to Section\n 9.07.\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 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 Lenders\" means, at any time, A Lenders owed at least 66 2\/3%\n ---------------- \n of the then aggregate unpaid principal amount of the A Advances held by A\n Lenders, or, if no such principal amount is then outstanding, A Lenders\n having at least 66 2\/3% of the A 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 \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 now or hereafter\n ----------- \n existing under this Agreement, whether for principal, interest, fees,\n expenses, indemnification or otherwise.\n\n \"OECD\" means the Organization for Economic Cooperation and\n ---- \n Development.\n\n \"Permitted Lien\" means:\n -------------- \n\n (i) Liens for taxes, assessments or governmental charges or\n levies to the extent not past due or to the extent contested, in good\n faith, by appropriate proceedings and for which adequate reserves have\n been 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\n similar Liens arising in the ordinary course of business which relate\n to obligations which are not overdue for a period of more than 30 days\n or which are being contested in good faith, by appropriate proceedings\n and for which reserves required by generally accepted accounting\n principles have 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\n of leases or contracts entered into in the ordinary course of business\n or of public or nondelinquent statutory obligations, bids, or appeal\n bonds;\n\n (iv) Liens upon or in, and limited to, any property acquired or\n held by the Borrower or any of its Subsidiaries to secure the purchase\n price of such property or to secure indebtedness incurred solely for\n the purpose of financing or refinancing the acquisition of any such\n property to be subject to such Liens, or Liens existing on any such\n property at the time of acquisition;\n\n \n (v) Liens upon any assets subject to a Capital Lease and\n securing payment of the obligations arising under such Capital Lease;\n\n (vi) zoning restrictions, easements, licenses, landlord's\n Liens or restrictions on the use of property which do not materially\n impair the use of such property in the operation of the business of\n the Borrower or any of its Subsidiaries;\n\n (vii) Liens of the Borrower and its Subsidiaries not described\n in the foregoing clauses (i) through (vi), existing of the date hereof\n and listed on Schedule III hereof;\n\n (viii) Liens not described in subclauses (i) through (vii) above\n that relate to liabilities not in excess of $20,000,000 in the\n aggregate; and\n\n (ix) extensions, renewals or replacements of Liens described\n in subclauses (i v), (v), (vii) and (viii) for the same or lesser\n amount; provided, that, no such extension, renewal or replacement\n -------- ---- \n shall extend to or cover any property not theretofore subject to the\n 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., The Hongkong and Shanghai\n --------------- \n Banking Corporation Limited and Bank of 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 9.07(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 27, 2005 or the earlier date of termination in whole of the A\n Commitments pursuant to Section 2.05 or 7.01.\n\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) having ordinary voting power to elect a majority\n of the board of directors of such corporation (or similar governing body or\n Person with respect to partnerships and trusts) (irrespective of whether or\n not at the time capital stock of any other class or classes of such\n corporation shall or might have voting power upon the occurrence of any\n contingency) is at the time directly or indirectly owned by such Person, by\n such Person and one or more other Subsidiaries of such Person, or by one or\n more other Subsidiaries of such Person.\n\n \"364-Day Credit Agreement\" means the Second Amended and Restated\n ------------------------ \n Credit Agreement dated as of the date hereof among the Borrower, the LC\n Subsidiaries (as defined therein), the financial institutions party thereto\n as lenders, Citibank, N.A., as Issuing Bank (as defined therein), and CUSA,\n as agent for the Issuing Bank and such lenders, as the same may be amended,\n supplemented or otherwise modified from time to time.\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 \"Type\" refers to the distinction among Advances bearing interest at\n ---- \n the Base Rate and Advances bearing interest at the Eurodollar Rate.\n\nSECTION 1.02 Computation of Time Periods. In this Agreement in the computation \n --------------------------- \nof periods of time from a specified date to a later specified date, the word\n\"from\" means \"from and including\" and the words \"to\" and \"until\" each means \"to\nbut 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 5.01(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\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 \n\n \nYork City time) on the day of such proposed A Borrowing, if such proposed A\nBorrowing consists of Base Rate Advances, by the Borrower to the Agent, which\nshall give to each A Lender prompt notice thereof by telecopier, telex or cable.\nEach such notice of an A Borrowing (a \"Notice of A Borrowing\") shall be by\ntelecopier, telex, cable or telephone (and if by telephone, confirmed\nimmediately in writing), in substantially the form of Exhibit A-1 hereto,\nspecifying therein the requested (i) date of such A Borrowing, (ii) Type of A\nAdvances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing\nand (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances,\ninitial Interest Period for each such A Advance. Each A Lender shall, before\n12:00 noon (New York City time) on the date of such A Borrowing, make available\nfor the account of its Applicable Lending Office to the Agent at its address\nreferred to in Section 9.02, in same day funds, such A Lender's ratable portion\nof such A Borrowing. After the Agent's receipt of such funds and upon\nfulfillment of the applicable conditions set forth in Article IV, the Agent will\nmake such funds available to the Borrower at the Agent's aforesaid address.\n\n(b) Anything in subsection (a) above to the contrary notwithstanding, the\nBorrower may not select Eurodollar Rate Advances for any A Borrowing if the\naggregate amount of such A Borrowing is less than $1,000,000 multiplied by the\nnumber of A Lenders.\n\n(c) Each Notice of A Borrowing shall be irrevocable and binding on the\nBorrower. In the case of any A Borrowing which the related Notice of A Borrowing\nspecifies is to be comprised of Eurodollar Rate Advances, the Borrower shall\nindemnify each A Lender against any loss, cost or expense incurred by such A\nLender as a result of any failure to fulfill on or before the date specified in\nsuch Notice of A Borrowing for such A Borrowing the applicable conditions set\nforth in Article IV, including, without limitation, any loss (including loss of\nanticipated profits), cost or expense incurred by reason of the liquidation or\nreemployment of deposits or other funds acquired by such A Lender to fund the A\nAdvance to be made by such A Lender as part of such A Borrowing when such A\nAdvance, as a result of such failure, is not made on such date.\n\n(d) Unless the Agent shall have received notice from an A Lender prior to the\ndate of any A Borrowing that such A Lender will not make available to the Agent\nsuch A Lender's ratable portion of such A Borrowing, the Agent may assume that\nsuch A Lender has made such portion available to the Agent on the date of such A\nBorrowing in accordance with subsection (a) of this Section 2.02 and the Agent\nmay, in reliance upon such assumption, make available to the Borrower on such\ndate a corresponding amount. If and to the extent that such A Lender shall not\nhave so made such ratable portion available to the Agent, such A Lender and the\nBorrower severally agree to repay to the Agent forthwith on demand such\ncorresponding amount together with interest thereon, for each day from the date\nsuch amount is made available to the Borrower until the date such amount is\nrepaid to the Agent at (i) in the case of the Borrower, the interest rate\napplicable at the time to A Advances comprising such A Borrowing and (ii) in the\ncase of such A Lender, the Federal Funds Rate. If such A Lender shall repay to\nthe Agent such corresponding amount, such amount so repaid shall constitute such\nA Lender's A Advance as part of such A Borrowing for purposes of this Agreement.\n\n(e) The failure of any A Lender to make the A Advance to be made by it as part\nof any A Borrowing shall not relieve any other A Lender of its obligation, if\nany, hereunder to make its A Advance on the date of such A Borrowing, but no A\nLender shall be responsible for the failure of any other A Lender to make the A\nAdvance to be made by such other A Lender on the date of any A Borrowing.\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, telex or cable, confirmed \n\n \n immediately in writing, a notice of a B Borrowing (a \"Notice of B\n Borrowing\"), in substantially the form of Exhibit A-2 hereto, specifying\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 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 \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 such 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 offers made by A Lenders pursuant to paragraph\n (ii) above by giving 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) notice 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 9.02 such A\n 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 IV, 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 \n\n \n notify each A Lender of the amount of the B Borrowing, the consequent B\n Reduction and the dates upon which such B Reduction commenced and will\n terminate.\n\n(b) Each B Borrowing shall be in an aggregate amount not less than $5,000,000\nor an integral multiple of $1,000,000 in excess thereof and, following the\nmaking of each B Borrowing, the Borrower shall be in compliance with the\nlimitation set forth in the proviso to the first sentence of subsection (a)\nabove. The Borrower may not accept offers for B Advances in excess of the\naggregate amount specified in its Notice of B Borrowing given with respect to\neach proposed B Borrowing.\n\n(c) Within the limits and on the conditions set forth in this Section 2.03, the\nBorrower may from time to time borrow under this Section 2.03, repay or prepay\npursuant to subsection (d) below, and reborrow under this Section 2.03. The\nBorrower may not make more than one B Borrowing on any Business Day.\n\n(d) If the Agent conducted the applicable auction relating to the B Advance to\nbe repaid, the Borrower shall repay to the Agent for the account of each A\nLender which has made a B Advance on the maturity date of each B Advance (such\nmaturity date being that specified by the A Lender for repayment of such B\nAdvance in the related offer delivered pursuant to subsection (a)(ii) above),\nthe then unpaid principal amount of such B Advance. If the Borrower conducted\nthe applicable auction relating to the B Advance to be repaid, the Borrower\nshall repay directly to each A Lender that made a B Advance on the maturity date\nof each B Advance (such maturity date being that specified by the A Lender for\nrepayment of such B Advance in the related offer delivered pursuant to\nsubsection (a)(ii) above), the then unpaid principal amount of such B Advance at\nthe account designated by such A Lender to the Borrower. The Borrower shall have\nno right to prepay any principal amount of any B Advance unless, and then only\non the terms, specified for such B Advance in the offer delivered pursuant to\nsubsection (a)(ii) above.\n\n(e) The Borrower shall pay interest on the unpaid principal amount of each B\nAdvance from the date of such B Advance to the date the principal amount of such\nB Advance is repaid in full, at the rate of interest for such B Advance\nspecified by the A Lender making such B Advance in its offer with respect\nthereto delivered pursuant to subsection (a)(ii) above, payable on the interest\npayment date or dates specified by the Borrower in its Notice of B Borrowing\nwith respect thereto delivered pursuant to subsection (a)(i) above. Such\ninterest shall be paid directly to the A Lender that made the B Advance at the\naccount designated by it to the Borrower, if the Borrower conducted the\napplicable auction relating to the B Advance on which interest is to be paid,\nand to the Agent for the account the Applicable Lending Office of each A Lender\nthat made a B Advance, if the Agent conducted the auction relating to the B\nAdvance on which interest is to be paid.\n\n(f) The indebtedness of the Borrower to an A Lender resulting from each B\nAdvance made to the Borrower as part of a B Borrowing shall be evidenced by such\nA Lender's loan account referred to in Section 3.04; provided, however, that\nupon the request of such A Lender, the Borrower shall execute and deliver to\nsuch A Lender a promissory note, in substantially the form of Exhibit E hereto,\nin the face amount of the B Advance made by such A Lender as part of a B\nBorrowing.\n\n(g) If the Borrower so elects, it may conduct, from time to time, auctions for\nB Advances in accordance with the foregoing provisions.\n\nSECTION 2.04 Fees.\n ---- \n(a) Facility Fee. The Borrower agrees to pay to the Agent for the account of\n ------------ \neach A Lender a facility fee, accruing at the rate per annum equal to the\nFacility Fee Percentage in effect from and after the date hereof, on the amount\nof such A Lender's A Commitment (computed without giving effect to any B\nReduction or any other usage of the A Commitment of such A Lender), payable\nquarterly in arrears on the last day of each January, April, July and October\nand on the Revolver Termination Date.\n\n(b) Utilization Fee. The Borrower agrees to pay to the Agent for the account\n --------------- \nof each A Lender a utilization fee, accruing, during all periods from and after\nthe date hereof when the aggregate amount of outstanding A Advances made by such\nA Lender exceeds 50% of such A Lender's A Commitment (without regard to any\nusage thereof), at the rate of 0.05% per annum on the aggregate amount of such A\nAdvances outstanding \n\n \nfrom time to time during such periods, payable quarterly in arrears on the last\nday of each January, April, July and October and on the Revolver Termination\nDate.\n\n(c) Other Fees. The Borrower hereby agrees to pay the fees and charges\n ---------- \nreferred to in that certain letter agreement, dated as of the date hereof, among\nthe Borrower and the Agent.\n\nSECTION 2.05 Reduction of the A Commitments. The Borrower shall have the\n ------------------------------ \nright, upon at least three Business Days' notice to the Agent, to irrevocably\nterminate in whole or reduce ratably in part the unused portions of the\nrespective A Commitments of the A Lenders, provided, the aggregate amount of the\n -------- \nA Commitments of the A Lenders shall not be reduced to an amount which is less\nthan the aggregate principal amount of the B Advances then outstanding and\nprovided, further that each partial reduction shall be in the aggregate amount\nof $25,000,000 or an integral multiple of $1,000,000 in excess thereof.\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 \n ------------------ \n Advance, a rate per annum equal at all times to the Base Rate in effect\n from time to time, payable quarterly on the last day of each April, July,\n October, and January and on the date such Base Rate Advance shall be\n Converted or paid in full; provided, that, any amount of principal which is\n -------- ----\n not paid when due (whether at stated maturity, by acceleration or\n otherwise) shall bear interest, from the date on which such amount is due\n until such amount is paid in full, payable on demand, at a rate per annum\n equal at all times to 2% per annum above the Base Rate in effect from time\n 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 the 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\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 any interest\nrate, the Agent shall determine such interest rate on the basis of timely\ninformation furnished by the remaining Reference Banks. The Agent shall give\nprompt notice to the Borrower and the A Lenders of the applicable interest rate\ndetermined 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 Lenders\nnotify the Agent that the Eurodollar Rate for any Interest Period for such\nAdvances will not adequately reflect the cost to such Majority 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\n A Advances into, Eurodollar Rate Advances shall be suspended until the\n Agent shall notify the Borrower and the A Lenders that the circumstances\n causing 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 will forthwith so\nnotify the Borrower and the A Lenders and such Advances will automatically, on\nthe last day of the then existing Interest Period therefor, Convert into Base\nRate 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\n A 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\n day of 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\n Convert A Advances into Eurodollar Rate Advances shall be suspended until\n the Agent shall notify the Borrower and the A Lenders that the\n circumstances causing 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 \n\n \nAdvances of one Type comprising the same A Borrowing into A Advances of another\nType; provided, however, that any Conversion of any Eurodollar Rate Advances\n -------- ------- \ninto A Advances of another Type shall be made on, and only on, the last day of\nan Interest Period for such Eurodollar Rate Advances. Each such notice of a\nConversion shall, within the restrictions specified above, specify (i) the date\nof 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 Day's, 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 of\nthe 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 9.04(b).\n\nSECTION 2.12 Increased Costs. (a) If, due to either (i) the introduction of or\n --------------- \nany change at any time after the date of this Agreement (other than any change\nby way of imposition or increase of reserve requirements in the case of\nEurodollar Rate Advances, included in the Eurodollar Rate Reserve Percentage) in\nor in the interpretation of any law or regulation or (ii) the compliance after\nthe date of this Agreement with any guideline or request from any central bank\nor other governmental authority (whether or not having the force of law), there\nshall be any increase in the cost to any A Lender of agreeing to make or making,\nfunding or maintaining Eurodollar Rate Advances, then the Borrower shall from\ntime to time, upon demand by such A Lender (with a copy of such demand to the\nAgent), pay to the Agent for the account of such A Lender additional amounts\nsufficient to compensate such A Lender for such increased cost; provided, that,\n -------- ---- \nthe Borrower shall have no obligation to reimburse any A Lender for increased\ncosts incurred more than 60 days prior to the date of such demand. A\ncertificate as to the amount of such increased cost setting forth the basis for\nthe calculation of such increased costs, submitted to the Borrower and the\nAgent by such A Lender, shall be conclusive and binding for all purposes, absent\nmanifest 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\nincrease in any cost to or reduction in any amount receivable by \n\n \nsuch A Lender with respect to which the Borrower would be obligated to\ncompensate such A Lender pursuant to Sections 2.12(a) or 2.12(b), such A Lender\nshall use reasonable efforts to select an alternative Applicable Lending Office\nwhich would not result in any such increase in any cost to or reduction in any\namount receivable by such A Lender; provided, however, that no A Lender shall\n -------- ------- \nbe obligated to select an alternative Applicable Lending Office if such A Lender\ndetermines that (i) as a result of such selection such A Lender would be in\nviolation of any applicable law, regulation, treaty, or guideline, or would\nincur additional costs or expenses or (ii) such selection would be inadvisable\nfor regulatory reasons 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 Business Days of notice from the Agent, Converts all Eurodollar Rate\nAdvances of all A Lenders then outstanding into A Advances of another Type in\naccordance with 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 45 but not more\n -------------------------------------- \nthan 60 days prior to the next Anniversary Date, the Borrower, by written notice\nto the Agent, may request that the Revolver Termination Date be extended one\ncalendar year from its then current scheduled expiration. The Agent shall\npromptly notify each A Lender of such request, and each A Lender shall in turn,\nwithin 30 days prior to such next Anniversary Date, notify the Borrower and the\nAgent in writing regarding whether such A Lender will consent to such extension.\nIf, and only if, the Majority Lenders consent in writing to such extension prior\nto the tenth Business Day preceding such next Anniversary Date, the Revolver\nTermination Date shall be so extended for one calendar year and references\nherein to the \"Revolver Termination Date\" shall refer to such \"Revolver\nTermination Date\" as so extended. If any A Lender does not consent to any\nrequested 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 not to have consented, (each such A Lender being a \"Declining A Lender\"),\nsuch Declining A Lenders' A Commitments shall terminate on the scheduled\nRevolver Termination Date then in effect for such Declining A Lender, and on\nsuch scheduled Revolver Termination Date the Borrower shall repay in full the\nprincipal amount of A Advances owing to such Declining A Lender, together with\naccrued interest thereon to the date of payment of such principal amount, all\nfees payable to such Declining A Lender and all other amounts payable to such\nDeclining A Lender under this Agreement (including, but not limited to any\nincreased costs or other additional amounts owing under Section 2.12, any\nindemnification for Taxes or Other Taxes under Section 3.02, or any amounts\nwhich may \n\n \nbe required to be paid by the Borrower pursuant to Section 9.04(b)). It is\nunderstood that no A Lender shall have any obligation whatsoever to agree to any\nrequest made by the Borrower for an extension of the Revolver Termination Date.\n\n ARTICLE III\n PAYMENTS, TAXES, EXTENSIONS, ETC.\n\nSECTION 3.01 Payments and Computations. (a) The Borrower shall make each\n ------------------------- \npayment hereunder with respect to Article II, the A Advances, the A Lenders, the\nB Advances and the Agent free and clear of all claims, charges, offsets or\ndeductions whatsoever not later than 12:00 noon (New York City time) on the day\nwhen due in U.S. dollars to the Agent (unless otherwise specified in Section\n2.03 with respect to B Advances) at its address referred to in Section 9.02 in\nsame day funds. The Agent will promptly thereafter cause to be distributed like\nfunds relating to the payment of principal or interest or facility or commitment\nfees ratably (other than amounts payable pursuant to Section 2.03, 2.08, 2.12,\n2.14 or 3.02) to the A Lenders for the account of their respective Applicable\nLending Offices, and like funds relating to the payment of any other amount\npayable to such A Lender to be distributed to the appropriate A Lender or A\nLenders and applied in accordance with the terms of this Agreement. Upon its\nacceptance of an Assignment and Acceptance and recording of the information\ncontained therein in the Register pursuant to Section 9.07(d), from and after\nthe effective date specified in such Assignment and Acceptance, the Agent shall\nmake all payments hereunder in respect of the interest assigned thereby to the A\nLender assignee thereunder, and the parties to such Assignment and Acceptance\nshall make all appropriate adjustments in such payments for periods prior to\nsuch effective date directly between themselves.\n\n(b) The Borrower hereby authorizes the Agent and each A Lender if and to the\nextent payment owed to the Agent or such A Lender is not paid when due hereunder\nto charge from time to time against any or all of the Borrower's accounts with\nthe Agent or such A Lender any amount 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\ncommitment fees are payable. Each determination by the Agent (or, in the case of\nSection 2.08, by an A Lender) of an interest rate hereunder shall be conclusive\nand binding 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 commitment 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 3.02 Taxes. (a) Any and all payments by the Borrower hereunder shall \n ----- \nbe made free and clear of and without deduction for any and all present or\nfuture taxes, levies, imposts, deductions, charges or \n\n \nwithholdings, and all liabilities with respect thereto, excluding, in the case\n --------- \nof each A Lender and the Agent, taxes imposed on its income, and franchise taxes\nimposed on it, by the jurisdiction under the laws of which such A Lender or the\nAgent (as the case may be) is organized or any political subdivision thereof\nand, in the case of each A Lender, taxes imposed on its income, and franchise\ntaxes imposed on it, by the jurisdiction of such A Lender's Applicable Lending\nOffice or any political subdivision thereof (all such non-excluded taxes,\nlevies, imposts, deductions, charges, withholdings and liabilities being\nhereinafter referred to as \"Taxes\"). If the Borrower shall be required by law to\ndeduct any Taxes from or in respect of any sum payable hereunder to any A Lender\nor the Agent, (i) the sum payable shall be increased as may be necessary so that\nafter making all required deductions (including deductions applicable to\nadditional sums payable under this Section 3.02) such A Lender or the Agent (as\nthe case may be) receives an amount equal to the sum it would have received had\nno such deductions been made, (ii) the Borrower shall make such deductions and\n(iii) the Borrower shall pay the full amount deducted to the relevant taxation\nauthority or other authority in accordance 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\n(hereinafter referred to as \"Other Taxes\").\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 under this Section 3.02) paid by\nsuch A Lender or the Agent (as the case may be) and any liability (including\npenalties, interest and expenses) arising therefrom or with respect thereto,\nwhether or not such Taxes or Other Taxes were correctly or legally asserted.\nThis reimbursement shall be made within 30 days from the date such A Lender or\nthe Agent (as the case may be) makes written demand therefor. The Agent and each\nA Lender, as the case may be, shall give prompt (within 10 Business Days) notice\nto the Borrower of the payment by the Agent or such A 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 obligations\nhereunder to reimburse the Agent and each A Lender for such Taxes or Other\nTaxes, except that the Borrower shall not be liable for penalties or interest\naccrued or incurred after such 10 Business Day period until such time as it\nreceives the notice contemplated above, after which time it shall be liable for\ninterest and penalties accrued or incurred prior to or during such 10 Business\nDay period and accrued or incurred after such receipt. The Borrower shall not be\nliable for any penalties, interest, expense or other liability with respect to\nsuch Taxes or Other Taxes after it has reimbursed the amount thereof to the\nAgent 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 Bank 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 3.02(a).\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 3.02(d) (other than if\n ----- ----\nsuch failure is due to a change in law occurring subsequent to the date on which\na form originally was required to be provided, or if such form otherwise is not\nrequired under the first sentence of subsection (d) above), such A Lender shall\nnot be entitled to\n\n \nindemnification under Section 3.02(a) with respect to Taxes imposed by the\nUnited States; provided, however, that should an A Lender become subject to\n -------- -------\nTaxes because of its failure to deliver a form required hereunder, the Borrower\nshall take such steps as the A Lender shall reasonably request to assist the A\nLender 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 3.02(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 3.02 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 3.02 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 3.02 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 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\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 3.02 and (ii) otherwise to cooperate with the\nBorrower to minimize the amount payable by the Borrower pursuant to this Section\n3.02; 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 3.02 shall survive the payment in full of the Obligations.\n\nSECTION 3.03 Sharing of Payments, Etc. If any A Lender shall obtain any \n ------------------------ \npayment (whether voluntary, involuntary, through the exercise of any right of\nset-off, or otherwise) on account of the A Advances made by it (other than\npursuant to Section 2.08, 2.12, 2.14 or 3.02) in excess of its ratable share of\npayments on account of the A Advances obtained by all the A Lenders, such Lender\nshall forthwith purchase from the other Lenders such participations in the A\nAdvances made by them as shall be necessary to cause such purchasing A Lender to\nshare the excess payment ratably with each of them, provided, however, that if\n -------- ------- \nall or any portion of such excess payment is thereafter recovered from such\npurchasing A Lender, such purchase from each A Lender shall be rescinded and\nsuch A Lender shall repay to the purchasing A Lender the purchase price to the\nextent of such recovery together with an amount equal to such A Lender's ratable\nshare (according to the proportion of (i) the amount of such A Lender's required\nrepayment to (ii) the total amount so recovered from the purchasing A Lender) of\nany interest or other amount paid or payable by the purchasing A Lender in\nrespect of the total amount so recovered. The Borrower agrees that any A Lender\nso purchasing a participation from another A Lender pursuant to this Section\n3.03 may, to the fullest extent permitted by law, exercise all its rights of\npayment (including the right of set-off) with respect to such participation as\nfully as if such A Lender were the direct creditor of the Borrower in the amount\nof such participation.\n\n \nSECTION 3.04 Evidence of Debt. (a) Each A Lender shall maintain in accordance\n ---------------- \nwith its usual practice an account or accounts evidencing the indebtedness of\nthe Borrower to such A Lender resulting from each Advance owing to such A Lender\nfrom time to time, including the amounts of principal and interest payable and\npaid to such A Lender from time to time hereunder.\n\n(b) The Register maintained by the Agent pursuant to Section 9.07(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\nBorrowing made hereunder, the Type of Advances comprising such Borrowing and the\nInterest 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\n ARTICLE IV\n CONDITIONS OF LENDING\n\nSECTION 4.01 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 (b) A certificate of the Secretary or an Assistant Secretary of\n the Borrower certifying the names and true signatures of the officers of\n the Borrower authorized to sign this Agreement and the other documents to\n be delivered hereunder.\n\n (c) A favorable opinion of Borrower's General Counsel or\n Associate General Counsel, substantially in the form of Exhibit C hereto,\n and as to such other matters as any Lender through the Agent may reasonably\n 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 4.02 Conditions Precedent to Each A Borrowing. The obligation of each\n ---------------------------------------- \nA Lender to make an A Advance on the occasion of each A Borrowing (including the\ninitial A Borrowing) shall be subject to the further conditions precedent that\non the date of such A Borrowing the following statements shall be true (and each\nof the giving of the applicable Notice of A Borrowing and the acceptance by the\nBorrower of the proceeds of such A Borrowing shall constitute a representation\nand warranty by the Borrower that on the date of such A Borrowing such\nstatements are true):\n\n (a) The representations and warranties contained in Section 5.01\n (other than Section 5.01(e)) are correct on and as of the date of such A\n Borrowing, before and after giving effect to such A Borrowing, and to the\n application of the proceeds therefrom, as though made on and as of such\n date, and\n\n (b) (i) No event has occurred and is continuing, or would\n result from such A Borrowing or from the application of the proceeds\n therefrom, 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 a \"Default\" under the 364-Day Credit\n Agreement.\n\nSECTION 4.03 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 5.01\n (other than Section 5.01(e)) are correct on and as of the date of such B\n Borrowing, before and after giving effect to such B Borrowing and to the\n application of the proceeds therefrom, as though made on and as of such\n 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 Default or Default and (ii) no event has\n occurred and is continuing which constitutes an \"Event of Default\" or a\n \"Default\" under the 364-Day Credit Agreement, and\n\n (c) No event has occurred and no circumstance exists as a result\n of which the information concerning the Borrower that has been provided to\n the Agent and each A Lender by the Borrower in connection herewith would,\n taken as a whole, include an untrue statement of a material fact or omit to\n state any material fact or any fact necessary to make the statements\n contained therein, in the light of the circumstances under which they were\n made, not misleading.\n\n ARTICLE V\n REPRESENTATIONS AND WARRANTIES\n\nSECTION 5.01 Representations and Warranties of the Borrower. The Borrower\nrepresents and warrants as follows:\n\n (a) The Borrower is a corporation duly organized, validly\n existing and in good standing under the laws of Delaware. The Borrower and\n each of its Subsidiaries possess all corporate powers and all other\n authorizations and licenses necessary to engage in their respective\n businesses, except where the failure to so possess would not have a\n Material Adverse Effect.\n\n (b) The execution, delivery and performance by the Borrower of\n this Agreement are within the Borrower's corporate powers, have been duly\n authorized by all necessary corporate action, and do not contravene (i) the\n Borrower's charter or by-laws or (ii) law or any contractual restriction\n binding on or affecting the Borrower or its properties.\n\n (c) No authorization or approval or other action by, and no\n notice to or filing with, any governmental authority or regulatory body is\n required for the due execution, delivery and performance by the Borrower of\n this Agreement.\n\n (d) This Agreement is the legal, valid and binding obligation of\n the Borrower enforceable against the Borrower in accordance with its terms,\n except as limited by bankruptcy,\n\n \n insolvency or other laws of general application relating to or effecting\n the enforcement of creditors' rights generally and general principles of\n equity (regardless of whether considered in a proceeding in equity or at\n 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, copies of which have been furnished to each Lender, fairly present\n the Consolidated financial condition of the Borrower and its Subsidiaries\n as at 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, and 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 (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,\n not 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 VI hereto is a complete and accurate\n list, as of the date hereof, of all Plans of the Borrower and its\n Subsidiaries. Neither the Borrower nor any ERISA Affiliate is a party or\n subject to, or has any obligation to make payments, to, any Multiemployer\n Plan.\n\n ARTICLE VI\n COVENANTS OF THE BORROWER\n\nSECTION 6.01 Affirmative Covenants. The Borrower will, unless the Majority\n --------------------- \nLenders 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 Liens), rules,\n regulations and orders, such compliance to include, without limitation,\n paying before the same become delinquent all taxes, assessments and\n governmental charges imposed upon it or upon its property except to the\n extent contested in good faith or where the failure to comply would not\n have a Material Adverse Effect.\n\n \n (b) Preservation of Corporate Existence, Etc. Preserve and \n ---------------------------------------- \n maintain, and cause each of its Subsidiaries to preserve and maintain, its\n corporate existence, rights (charter and statutory), and franchises except\n if, in the reasonable business judgment of the Borrower or such Subsidiary,\n as the 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 hereunder or the ability of the Borrower to\n perform its obligations hereunder.\n\n (c) Visitation Rights. Permit the Agent and any Lender or any \n ----------------- \n agents or representatives thereof from time to time during normal business\n hours to examine and make copies of and abstracts from the records and\n books of account of, and upon reasonable prior notice to visit the\n properties of, the Borrower and its Subsidiaries during reasonable business\n hours, without hindrance or delay, and to discuss the affairs, finances and\n accounts of the Borrower and its Subsidiaries with any of their respective\n directors, officers or agents.\n\n (d) Keeping of Books. Keep, and cause each of its Subsidiaries \n ---------------- \n to keep, proper books of record and account, in which full and correct\n entries shall be made of all financial transactions and the assets and\n business of the Borrower and each of its Subsidiaries in accordance with\n sound business practice.\n\n (e) Maintenance of Properties, Etc. Maintain and preserve, and \n ------------------------------ \n cause each of its Subsidiaries to maintain and preserve, all of its\n properties which are used or useful in the conduct of its business in good\n working order and condition, ordinary wear and tear excepted, consistent\n with sound business practice, except where the failure to so maintain and\n preserve 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, \n ---------------------------------------------------------\n Etc. (i) Employ, and cause each of its Subsidiaries to employ, appropriate\n ---\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 \n (h) Environmental Matters. If the Borrower or any of its \n --------------------- \n Subsidiaries shall:\n\n (i) receive written notice that any material violation of\n any Environmental Laws may have been committed or is about to be\n committed by the Borrower or any of its Subsidiaries the cure of\n which would result in expenditures exceeding $1,000,000;\n\n (ii) receive written notice that any administrative or\n judicial complaint or order has been filed or is about to be filed\n against the Borrower or any of its Subsidiaries alleging any\n material violation of any Environmental Laws or requiring the\n Borrower or any of its Subsidiaries to take any action (which, if\n taken, would result in expenditures exceeding $1,000,000) in\n connection with the release or threatened release of Hazardous\n Substances or solid waste into the environment; or\n\n (iii) receive written notice from a federal, state, foreign\n or local governmental agency or private party alleging that the\n Borrower or any of its Subsidiaries is liable or responsible for\n costs in excess of $1,000,000 associated with the response to\n cleanup, stabilization or neutralization of any Environmental\n 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 Lenders made through the Agent, cause its Subsidiaries designated\n in such request to enter into and deliver a guaranty of the Obligations,\n such guaranty to be in form and substance satisfactory to the Majority\n Lenders.\n\nSECTION 6.02 Negative Covenants. The Borrower will not, without the written \n ------------------ \nconsent of the Majority 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 6.03 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 6.02(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 \n\n \n corporation organized and existing under the laws of the United States of\n America or any State thereof and shall assume the Borrower's obligations\n hereunder in an agreement or instrument in form and substance reasonably\n 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\n any Person (an \"Asset Acquisition\") unless (A) if such Asset\n ------\n Acquisition involves the purchase of Retail Assets, the purchase\n price of the Retail Assets to be purchased in such Asset\n Acquisition is less than 50% of the book value of the Borrower's\n Consolidated Total Assets immediately prior to such Asset\n Acquisition or (B) if such Asset Acquisition involves the purchase\n of Non-Retail Assets, the purchase price of the Non-Retail Assets\n to be purchased in such Asset Acquisition is less than 25% of the\n book value of the Borrower's Consolidated Total Assets immediately\n prior to such Asset Acquisition and (C) immediately prior to and\n after giving effect to such Asset Acquisition no Event of Default\n or Default shall exist.\n\n (ii) Investments. Make, or permit any of its Subsidiaries \n ----------- \n to make, an investment in any Person by way of the purchase of\n such 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\n 50% of the Borrower's Consolidated Total Assets immediately prior\n to such Investment or (B) if such Investment is in a Person\n engaged predominantly in the Non-Retail Business, the purchase\n price and dollar amount of capital contributions made with respect\n to such Investment is less than 25% of the Borrower's Consolidated\n Total Assets immediately prior to such Investment and (C) such\n Investment is made with the permission of the Board of Directors\n of the Person in whom the Investment is being made and immediately\n prior to and after giving effect to such Investment no Event of\n Default or Default shall exist. The foregoing limitation shall not\n restrict the Borrower's and its Subsidiaries' ability to make\n investments in the instruments described in Schedule V hereto, as\n such Schedule may be amended from time to time by the Borrower.\n The Borrower shall provide the Agent and each Lender a copy of\n each change or amendment made to Schedule V promptly after each\n such change or amendment thereof.\n\n (iii) Mergers. Consummate, or permit the consummation of, \n ------- \n any merger or consolidation (regardless of whether it is otherwise\n permitted by Section 6.02(c)) if immediately after giving effect\n to such merger or consolidation the book value of Consolidated \n Non-Retail Assets of the surviving corporation is greater than 25%\n of the book value of Borrower's Consolidated Total Assets, or the\n book value of the Consolidated Retail Assets of the surviving\n corporation is greater than 50% of the Borrower's Consolidated\n Total Assets, in each case immediately prior to such merger or\n consolidation provided, that, Subsidiaries of the Borrower may\n -------- ---- \n merge into or with the Borrower or any other Subsidiary of the\n Borrower without regard to the restrictions of this Section\n 6.02(d)(iii).\n\n (e) Change in Nature of Business. Make any material change in \n ---------------------------- \n the nature of the business of the Borrower and its Subsidiaries as\n conducted as of the date hereof.\n\n \nSECTION 6.03 Financial Covenant. The Borrower will not, without the written\n ------------------ \nconsent of the Majority Lenders, permit the ratio of Debt on the last day of any\nFiscal Quarter of the Borrower to EBITDA for the period of four consecutive\nFiscal Quarters of the Borrower ending on such day to be greater than 3.00 to\n1.00.\n\nSECTION 6.04 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\n the 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 principles, (ii) whether or not he or she has knowledge\n of the occurrence of any Event of Default or Default and, if so, stating in\n reasonable detail the facts with respect thereto and (iii) whether or not\n the Borrower is in compliance with the requirements set forth in Section\n 6.03 (which certificate shall contain the computations used by such chief\n financial officer in determining such compliance or non-compliance);\n\n (ii) as soon as available and in any event within 120 days after\n the end of each Fiscal Year of the Borrower, a copy of the annual report\n for such year for the Borrower and its Subsidiaries, containing\n Consolidated financial statements of the Borrower and its Subsidiaries for\n such Fiscal Year certified in a manner acceptable to the Majority Lenders\n by Deloitte & Touche or other independent public accountants reasonably\n acceptable to the Majority 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 6.03 (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\n a 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\n all reports and notices which the Borrower or any Subsidiary files under\n ERISA 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 \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\n operations, financial or otherwise, of the Borrower or any of its\n Subsidiaries as any Lender through the Agent may from time to time\n reasonably request.\n\n ARTICLE VII\n EVENTS OF DEFAULT\n\nSECTION 7.01 Events of Default. If any of the following events (\"Events of\n ----------------- \nDefault\") shall occur and be continuing:\n\n (a) The Borrower shall fail to pay any principal of any\n Advance when the same becomes due and payable; or shall fail to pay any\n interest on any Advance, fees or any other amounts hereunder within two\n days after the 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 or otherwise) or by the Borrower (or any\n of its officers) in connection with this Agreement shall prove to have been\n incorrect in any material respect when made; or\n\n (c) The Borrower shall fail to perform or observe (i) the\n covenant contained in Section 6.03; or (ii) any term, covenant or agreement\n contained in Section 6.02(c) or (d) for a period of five days after written\n notice thereof shall have been given to the Borrower by the Agent or any\n Lender; or (iii) any other term, covenant or agreement contained in this\n Agreement on its part to be performed or observed if the failure to perform\n or observe such other term, covenant or agreement shall remain unremedied\n for 30 days after written notice thereof shall have been given to the\n Borrower by the Agent or any Lender; or\n\n (d) The Borrower or any of its Subsidiaries shall fail to pay\n any principal of or premium or interest on any Debt which is outstanding in\n a 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\n not pay its debts as such debts become due, or shall admit in writing its\n inability to pay its debts generally, or shall make a\n\n \n general assignment for the benefit of creditors; or any proceeding shall be\n instituted by or against the Borrower or any of its Subsidiaries seeking to\n adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,\n reorganization, arrangement, adjustment, protection, relief, or composition\n of it or its debts under any law relating to bankruptcy, insolvency or\n reorganization or relief of debtors, or seeking the entry of an order for\n relief or the appointment of a receiver, trustee, custodian or other\n similar official for it or for any substantial part of its property and, in\n the case of any such proceeding instituted against it (but not instituted\n by it), either such proceeding shall remain undismissed or unstayed for a\n period of 60 days, or any of the actions sought in such proceeding\n (including, without limitation, the entry of an order for relief against,\n or the appointment of a receiver, trustee, custodian or other similar\n official for, it or for any substantial part of its property) shall occur;\n or the Borrower or any of its Subsidiaries shall take any corporate action\n to authorize any of the actions set forth above in this subsection (e); or\n\n (f) Any judgment or order for the payment of money in excess of\n $50,000,000 shall be 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\nthen, and in any such event, the Agent shall at the request, or may with the\nconsent, of the Majority Lenders, by notice to the Borrower, (A) declare the\nobligation of each A Lender to make Advances to be terminated, whereupon the\nsame shall forthwith terminate, and\/or (B), declare the Advances, all interest\nthereon and all other amounts payable under this Agreement to be forthwith due\nand payable, whereupon the Advances, all such interest and all such amounts\nshall become and be forthwith due and payable, without presentment, demand,\nprotest or further notice of any kind, all of which are hereby expressly waived\nby the Borrower; provided, however, that in the event of an actual or deemed\n -------- ------- \nentry of an order for relief with respect to the Borrower or any of its\nSubsidiaries under the Federal Bankruptcy Code, the obligation of each A Lender\nto make A Advances shall automatically be terminated, the then outstanding\nAdvances, all such interest and all such amounts shall automatically become and\nbe due and payable, without presentment, demand, protest or any notice of any\nkind, all of which are hereby expressly waived by the Borrower shall\nautomatically be terminated.\n\n ARTICLE VIII\n THE AGENT\n\nSECTION 8.01 Authorization and Action. Each Lender hereby appoints and\n ------------------------ \nauthorizes the Agent to take such action as agent on its behalf and to exercise\nsuch powers under this Agreement as are delegated to the Agent by the terms\nhereof, together with such powers as are reasonably incidental thereto. As to\nany matters not expressly provided for by this Agreement (including, without\nlimitation, enforcement or collection of the Advances), the Agent shall not be\nrequired to exercise any discretion or take any action, but shall be required to\nact or to refrain from acting (and shall be fully protected in so acting or\nrefraining from acting) upon the instructions of the Majority Lenders, and such\ninstructions shall be binding upon all Lenders; provided, however, that the\n -------- ------- \nAgent shall not be required to take any action which exposes the Agent to\npersonal liability or which is contrary to this Agreement or applicable law.\nThe Agent agrees to give to each Lender prompt notice of each notice given to it\nby the Borrower pursuant to the terms of this Agreement unless the distribution\nof such notice is otherwise provided for herein.\n\n \nSECTION 8.02 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 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 9.07; (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,\ntelegram, cable or telex) believed by it to be genuine and signed or sent by the\nproper party or parties.\n\nSECTION 8.03 CUSA and Affiliates. With respect to CUSA's A Commitment and the\n ------------------- \nAdvances made by it, CUSA shall have the same rights and powers under this\nAgreement as any other Lender and may exercise the same as though it were not\nthe Agent; and the term \"Lender\" or \"Lenders\" shall, unless otherwise expressly\nindicated, include CUSA in its individual capacity. CUSA and each of its\nAffiliates (and, as applicable, any of its officers and directors) may accept\ndeposits from, lend money to, act as trustee under indentures of, and generally\nengage in any kind of business with, the Borrower, any of its Subsidiaries and\nany Person who may do business with or own securities of the Borrower or any\nsuch Subsidiary, all as if CUSA were not the Agent and without any duty to\naccount therefor to the Lenders.\n\nSECTION 8.04 Lender Credit Decision. Each Lender acknowledges that it has,\n ---------------------- \nindependently and without reliance upon the Agent or any other Lender and based\non the financial statements referred to in Section 5.01 and such other documents\nand information as it has deemed appropriate, made its own credit analysis and\ndecision to enter into this Agreement. Each Lender also acknowledges that it\nwill, independently and without reliance upon the Agent 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 this Agreement.\n\nSECTION 8.05 Indemnification. The Lenders agree to indemnify the Agent\n --------------- \n(to the extent not reimbursed by the Borrower), ratably, according to their\nrespective principal amounts of A Advances then outstanding or if no A Advances\nare outstanding, ratably according to the respective amounts of their A\nCommitments), from and against any and all liabilities, obligations, losses,\ndamages, penalties, actions, judgments, suits, costs, expenses or disbursements\nof any kind or nature whatsoever which may be imposed on, incurred by, or\nasserted against the Agent in any way relating to or arising out of this\nAgreement or any action taken or omitted by the Agent under this Agreement,\nprovided, that, no Lender shall be liable for any portion of such liabilities,\n-------- ---- \nobligations, losses, damages, penalties, actions, judgments, suits, costs,\nexpenses or disbursements resulting from the Agent's gross negligence or willful\nmisconduct. 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 counsel fees) incurred by the Agent in connection\nwith the preparation, execution, delivery, administration, modification,\namendment or enforcement (whether through negotiations, legal proceedings or\notherwise) of, or legal advice in respect of rights or responsibilities under,\nthis Agreement, to the extent that the Agent is not reimbursed for such expenses\nby the Borrower. In the case of any investigation, litigation or proceeding\ngiving rise to any such liabilities, obligations, losses, damages, \n\n \npenalties, actions, judgments, suits, costs expenses or disbursements, this\nSection 8.05 applies whether any such investigation, litigation or proceeding is\nbrought by the Agent, any Lender or a third party.\n\nSECTION 8.06 Successor Agent. The Agent may resign at any time by giving ten\n --------------- \ndays' prior written notice thereof to the Lenders and the Borrower and may be\nremoved at any time with or without cause by the Majority Lenders; provided, \n -------- \nthat, the Agent may resign without having given such notice if it is required to\n---- \ndo so as a matter of law. Upon any such resignation or removal, the Majority\nLenders, after consulting with the Borrower and giving due consideration to any\nsuccessor agent recommended by the Borrower, shall have the right to appoint a\nsuccessor Agent with the consent of the Borrower (which shall not be\nunreasonably withheld). If no successor Agent shall have been so appointed by\nthe Majority Lenders and consented to by the Borrower, and shall have accepted\nsuch appointment, within 30 days after the retiring Agent's giving of notice of\nresignation or the Majority Lenders' removal of the retiring Agent, then the\nretiring Agent may, after consulting with the Borrower and giving due\nconsideration to any successor agent recommended by the Borrower, on behalf of\nthe Lenders, appoint a successor Agent, 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 Agent hereunder by\na successor Agent, such successor Agent shall thereupon succeed to and become\nvested with all the rights, powers, privileges and duties of the retiring Agent,\nand the retiring Agent shall be discharged from its duties and obligations under\nthis Agreement. After any retiring Agent's resignation or removal hereunder as\nAgent, the provisions of this Article VIII shall inure to its benefit as to any\nactions taken or omitted to be taken by it while it was Agent under this\nAgreement.\n\n ARTICLE IX\n MISCELLANEOUS\n\nSECTION 9.01 Amendments, Etc.\n --------------- \n\n(a) Majority Lenders. No amendment or waiver of any provision of this\n ----------------\nAgreement, nor consent to any departure by the Borrower therefrom, shall in any\nevent be effective unless the same shall be in writing and signed by the\nMajority Lenders; provided, however, that no amendment, waiver or consent shall,\n -------- -------\nunless in writing and signed by all the A Lenders, do any of the following: (i)\nwaive any of the conditions specified in Section 4.01 or 4.02 as they relate to\nA Borrowings and A Advances, (ii) increase the A Commitments of the A Lenders or\nsubject the A Lenders to any additional obligations, (iii) reduce the principal\nof, or interest on, the A Advances or any fees or other amounts payable\nhereunder to the A Lenders, (iv) postpone any date fixed for any payment of\nprincipal of, or interest on, the A Advances or any fees or other amounts\npayable hereunder to the A Lenders (other than as permitted under Section 2.14),\n(v) change the percentage of the A Commitments or of the aggregate unpaid\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 (a) of this Section 9.01.\n\n(b) Agent. No amendment, waiver or consent given or effected pursuant to this\n -----\nSection 9.01 shall, unless in writing and signed by the Agent in addition to the\nA Lenders required above to take such action, affect the rights, obligations or\nduties of the Agent under this Agreement.\n\n(c) Limitation of Scope. All waivers and consents granted under this Section\n -------------------\n9.01 shall be effective only in the specific instance and for the specific\npurpose for which given.\n\nSECTION 9.02 Notices, Etc. All notices and other communications provided for\n ------------ \nhereunder shall be in writing (including telecopier, telegraphic, telex or cable\ncommunication) and mailed, sent by overnight courier, telecopied, telegraphed,\ntelexed, cabled or delivered, if to the Borrower, at its address at 900 Cherry\nAvenue, San Bruno, CA 94066 Attention: Treasurer; if to any Lender, at its\nDomestic Lending Office specified opposite its name on Schedule II hereto; if to\nany other Lender, at its Domestic Lending Office specified in the Assignment and\nAcceptance pursuant to which it became a Lender; if to the Agent, at its address\nat 399 Park Avenue, New York, New York 10043, Attention: Credit Administration;\nwith a copy, in the case of notices to the Agent, to Citicorp North America,\nInc., One Sansome Street, San Francisco,\n\n \nCalifornia, Attention: Carolyn Wendler, or, as to each party, at such other\naddress or to such other person as shall be designated by such party in a\nwritten notice to the other parties. All such notices and communications shall,\nwhen mailed, be effective three days after being deposited in the mails, when\nsent by overnight courier, be effective one day after being sent by overnight\ncourier, when telecopied or delivered to the telegraph company, be effective\nwhen received or delivered to the cable company, respectively; and when\ndelivered by hand, be effective upon delivery except that notices and\ncommunications to the Agent pursuant to Article II or VIII shall not be\neffective until received by the Agent.\n\nSECTION 9.03 No Waiver; Remedies. No failure on the part of any Lender or the\n ------------------- \nAgent to exercise, and no delay in exercising, any right hereunder shall operate\nas a waiver thereof; nor shall any single or partial exercise of any such right\npreclude any other or further exercise thereof or the exercise of any other\nright. The remedies herein provided are cumulative and not exclusive of any\nremedies provided by law.\n\nSECTION 9.04 Costs and Expenses. (a) The Borrower agrees to pay on demand all\n ------------------ \ncosts and expenses of the Agent incurred in connection with the preparation,\nexecution, delivery, modification and amendment of this Agreement, and the other\ndocuments to be delivered hereunder, including, without limitation, the\nreasonable fees and out-of-pocket expenses of counsel for the Agent with respect\nthereto and with respect to advising the Agent as to their respective rights and\nresponsibilities under this Agreement with respect thereto. The Borrower further\nagrees to pay on demand all costs and expenses of the Agent and each Lender\n(including, without limitation, reasonable counsel fees and expenses), incurred\nin connection with the enforcement (whether through negotiations, legal\nproceedings or otherwise) of this Agreement and the other documents to be\ndelivered hereunder, including, without limitation, reasonable counsel fees and\nexpenses in connection with the enforcement of their respective rights\nhereunder.\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 2.09(d),\n2.11, 2.13 or 2.14 or acceleration of the maturity of the Advances pursuant to\nSection 7.01 or for any other reason, the Borrower shall, upon demand by any A\nLender (with a copy of such demand to the Agent), pay to the Agent for the\naccount of such A Lender any amounts required to compensate such A Lender for\nany additional losses, costs or expenses which it may reasonably incur as a\nresult of such payment or Conversion, including, without limitation, any loss\n(including loss of anticipated profits), cost or expense incurred by reason of\nthe liquidation or reemployment of deposits or other funds acquired by any A\nLender 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 each of their Affiliates and their respective officers, directors,\nemployees, agents and advisors (each, an \"Indemnified Party\") from and against\nany and all claims, damages, liabilities and expenses (including, without\nlimitation, fees and disbursements of counsel), which may be incurred by or\nasserted against any Indemnified Party in connection with or arising out of any\ninvestigation, litigation, or proceeding (whether or not such Indemnified Party\nis party thereto) related to any acquisition or proposed acquisition by the\nBorrower, or by any Subsidiary of the Borrower, of all or any portion of the\nstock or substantially all the assets of any Person or any use or proposed use\nof the Advances by the Borrower, except to the extent such claim, damage,\nliability or expense shall have resulted from such Indemnified Party's gross\nnegligence or willful misconduct. In the event this indemnity is unenforceable\nas a matter of law as to a particular matter or consequence referred to herein,\nit shall be enforceable to the full extent permitted by law. The indemnification\nprovisions set forth above shall be in addition to any liability the Borrower\nmay otherwise have. Without prejudice to the survival of any other obligation of\nthe Borrower hereunder, the indemnities and obligations of the Borrower\ncontained in this Section 9.04 shall survive the payment in full of all the\nObligations.\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 9.04(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\n \nSECTION 9.05 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 7.01 to authorize the Agent to\ndeclare the Advances due and payable pursuant to the provisions of Section 7.01,\neach Lender and each of its Affiliates is hereby authorized at any time and from\ntime to time, to the fullest extent permitted by law, to set off and apply any\nand all deposits (general or special, time or demand, provisional or final) at\nany time held and other indebtedness at any time owing by such Lender or such\nAffiliate to or for the credit or the account of the Borrower against any and\nall of the obligations of the Borrower now or hereafter existing under this\nAgreement to such Lender, whether or not such Lender shall have made any demand\nunder this Agreement and although such obligations may be unmatured. Each\nLender agrees promptly to notify the Borrower after any such set-off and\napplication made by such Lender or any of its Affiliates, provided, that, the\n -------- ---- \nfailure to give such notice shall not affect the validity of such set-off and\napplication. The rights of each Lender and its Affiliates under this Section\nare in addition to other rights and remedies (including, without limitation,\nother rights of set-off) which such Lender and its Affiliates may have.\n\nSECTION 9.06 Binding Effect. This Agreement shall become effective when it\n -------------- \nshall have been executed by the Borrower and the Agent and when the Agent shall\nhave been notified by each Bank that such Bank has executed it and thereafter\nshall be binding upon and inure to the benefit of the Borrower, the Agent and\neach Lender and their respective successors and assigns, except that the\nBorrower shall not have the right to assign its respective rights hereunder or\nany interest herein without the prior written consent of the Lenders.\n\nSECTION 9.07 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 or 3.02, after such Lender has declined to vote in favor of extension\nof the Revolver Termination Date pursuant to Section 2.14, or after any Lender\nhas assigned all or any portion of its rights and obligations under this\nAgreement to any Affiliate without the consent of the Borrower, upon at least 20\ndays' notice to such Lender and the Agent), will, assign to one or more banks or\nother entities all or a portion of its rights and obligations under this\nAgreement (including, without limitation, all or a portion, respectively, of its\nA Commitment and the A Advances owing to it); provided, however, that (i) each\n -------- ------- \nsuch respective assignment shall be of a percentage of all rights and\nobligations under this Agreement (other than any B Advances) in respect of the\nassigning A Lender's A Commitment and A Advances that is constant and not\nvarying over time, (ii) the respective amounts of the rights and obligations\nunder the A Commitment and A Advances of the assigning A Lender, being assigned\npursuant to each such assignment (determined as of the date of the Assignment\nand Acceptance with respect to such assignment) shall in no event be less than\n5% of all such rights and obligations or less than $5,000,000 (or an integral\nmultiple of $500,000 in excess thereof), (iii) each such assignment shall be to\nan Eligible 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\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 9.07(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 9.07(a) unless and until such Lender shall\nhave 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, \n\n \nan Assignment and Acceptance, together with a processing and recordation fee of\n$2,000; provided, that, no such fee shall be payable in connection with an\nassignment by an assigning Lender to an Affiliate of such assigning Lender. Upon\nsuch execution, delivery, acceptance and recording, from and after the effective\ndate specified in each Assignment and Acceptance, (x) the assignee thereunder\nshall be a party hereto and, to the extent that rights and obligations hereunder\nhave been assigned to it pursuant to such Assignment and Acceptance, have the\nrights and obligations of a Lender hereunder and (y) the Lender assignor\nthereunder shall, to the extent that rights and obligations hereunder have been\nassigned by it pursuant to such Assignment and Acceptance, relinquish its rights\nand be released from its obligations under this Agreement (and, in the case of\nan Assignment and Acceptance covering all or the remaining portion of an\nassigning Lender's rights and obligations under this Agreement, such Lender\nshall cease to be a party hereto).\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 the performance or observance by the Borrower of any of its\nobligations under this Agreement or any other instrument or document furnished\npursuant hereto; (iii) such assignee confirms that it has received a copy of\nthis Agreement, together with copies of the financial statements referred to in\nSection 5.01 and such other documents and information as it has deemed\nappropriate to make its own credit analysis and decision to enter into such\nAssignment and Acceptance; (iv) such assignee will, independently and without\nreliance upon the Agent, such assigning Lender or any other Lender and based on\nsuch documents and information as it shall deem appropriate at the time,\ncontinue to make its own credit decisions in taking or not taking action under\nthis Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)\nsuch assignee appoints and authorizes the Agent to take such action as agent on\nits behalf and to exercise such powers under this Agreement as are delegated to\nthe Agent by the terms hereof, together with such powers as are reasonably\nincidental thereto; and (vii) such assignee agrees that it will perform in\naccordance with their terms all of the obligations which by the terms of this\nAgreement are required to be performed by it as a Lender.\n\n(c) The Agent shall maintain at its address referred to in Section 9.02 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 A Commitment\nof, and principal amount of the Advances owing to, each Lender from time to time\n(the \"Register\"). The entries in the Register shall be conclusive and binding\nfor all purposes, absent manifest error, and the Borrower, the Agent and the\nLenders may treat each Person whose name is recorded in the Register as a Lender\nhereunder for all purposes of this Agreement. The Register shall be available\nfor inspection by the Borrower or any Lender at any reasonable time and from\ntime 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, (ii) record the information contained therein in the Register and\n(iii) give prompt notice thereof to the Borrower.\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 9.07 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 3.02 hereof and shall have no voting rights or other\n\n \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 Commitment and the\nAdvances owing to it; provided, however, that (i) such Lender's obligations\n -------- -------\nunder this Agreement (including, without limitation, its A Commitment to the\nBorrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely\nresponsible to the other parties hereto for the performance of such obligations,\n(iii) such Lender shall remain the owner of any Advance for all purposes of this\nAgreement, and (iv) the Borrower, the Agent and the other Lenders shall continue\nto deal solely and directly with such Lender in connection with such Lender's\nrights and obligations under this Agreement, provided, further, that, to the\n -------- -------\nextent of any such participation (unless otherwise stated therein and subject to\nthe preceding proviso), the purchaser of such participation shall, to the\n -------\nfullest extent permitted by law, have the same rights and benefits hereunder as\nit would have if it were a Lender hereunder; and provided, further, that each\n -------- -------\nsuch participation 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 or other amounts or\nfees in which such purchaser has an interest, (ii) postpone any date fixed for\npayment of principal of or interest on any such Advance or other amounts or such\nfees, or (iii) extend the Revolver Termination Date.\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\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 9.08 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 9.09 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 agreement or covenant, the fact\nthat such action or condition would be permitted within the limitations of\nanother agreement or covenant shall not be construed as allowing such action to\nbe taken or condition to exist.\n\nSECTION 9.10 Confidentiality. Each Lender and the Agent agrees that it will\n --------------- \nnot disclose to any third party any written information marked \"Confidential\"\n ------------\nprovided to it by the Borrower; provided, that, the foregoing will not (i)\n -------- ----\nrestrict the ability of the Agent, the Lenders and any loan participants from\nfreely exchanging such information among themselves (and their respective\nemployees, attorneys, agents and advisors), (ii) restrict the ability to\ndisclose such information to a prospective Eligible Assignee or participant,\nprovided, that, such Eligible Assignee or participant executes a confidentiality\n-------- ----\nagreement with the selling Lender agreeing to be bound by the terms hereof prior\nto disclosure of such information to such\n\n \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 9.11 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 9.12 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), supersedes all previous\nunderstandings, written or oral, in respect thereof.\n\nSECTION 9.13 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 9.14 Consent to Jurisdiction. (a) Each of the parties hereto\n ----------------------- \nhereby irrevocably submits to the non-exclusive jurisdiction of any New York\nState or Federal court sitting in the County of New York, The City of New York,\nin any action or proceeding arising out of or relating to this Agreement, and\neach of the parties hereby irrevocably agrees that all claims in respect of such\naction or proceeding may be heard and determined in such New York State court or\nsuch Federal court. Each of the parties hereby irrevocably agrees, to the\nfullest extent each may effectively do so, that each will not assert any defense\nthat such courts do not have subject matter or personal jurisdiction of such\naction or proceeding or over any party hereto. Each of the parties hereby\nirrevocably consents to the service of copies of the summons and complaint and\nany other process which may be served in any such action or proceeding by\ncertified mail, return receipt requested, or by delivering of a copy of such\nprocess to such party at its address specified in Section 9.02 or by any other\nmethod permitted by law. Each of the parties hereby agrees that a final\njudgment in any such action or proceeding shall be conclusive and may be\nenforced in other jurisdictions by suit on the judgment or by any other manner\nprovided by law.\n\n(b) Nothing in this Section 9.14 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 9.15 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND \n ------------- \nCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.\n\nSECTION 9.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND THE\n -------------------- \nLENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED\nUPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT\nOR THE ADVANCES, OR THE ACTIONS OF THE AGENT OR ANY LENDER IN CONNECTION WITH\nTHE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.\n\n \n S-1\n\n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to\nbe executed by their respective officers thereunto duly authorized, as of the\ndate first above written.\n\n\n THE BORROWER:\n ------------ \n\n THE GAP, INC.\n\n\n By \/s\/ Heidi Kunz\n -------------------------------------\n Heidi Kunz\n Executive Vice President\n and Chief Financial Officer\n\n\n THE AGENT:\n --------- \n\n CITICORP USA, INC.\n\n\n By \/s\/ Carolyn Wendler\n -------------------------------------\n Carolyn Wendler\n Managing Director\n\n \n S-2\n\n THE BANKS:\n --------- \n\n CITICORP USA, INC.\n \n\n By \/s\/ Carolyn Wendler\n -------------------------------------\n Carolyn Wendler\n Managing Director\n\n\n\n BANK OF AMERICA, N.A.\n \n\n By \/s\/ Kimberly A. Whitney\n -------------------------------------\n Kimberly A. Whitney\n Managing Director\n\n\n\n THE HONG KONG AND SHANGHAI\n BANK CORPORATION LIMITED\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 S-3\n\n THE SUMITOMO BANK LIMITED\n \n\n By \/s\/ Azar Shakeri\n -------------------------------------\n Azar Shakeri\n Vice President and Manager\n\n\n\n DEUTSCHE BANK AG NEW YORK\n BRANCH AND\/OR CAYMAN ISLANDS\n 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\n SOCITETE GENERALE\n \n\n By \/s\/ Carol Radice\n -------------------------------------\n Carol Radice\n Vice President\n\n\n\n THE FUJI BANK, LIMITED\n \n\n By \/s\/ Masahito Fukuda\n -------------------------------------\n Masahito Fukuda\n Senior Vice President\n\n \n S-4\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\n\n THE BANK OF NEW YORK\n \n\n By \/s\/ Charlotte Sohn Fuiks\n -------------------------------------\n Charlotte Sohn Fuiks\n Vice President\n\n\n\n BANK ONE, NA f\/k\/a THE FIRST\n NATIONAL BANK OF CHICAGO\n\n By \/s\/ Eva Drinis\n -------------------------------------\n Eva Drinis\n Assistant Vice President\n\n\n\n U.S. BANK NATIONAL ASSOCIATION\n \n\n By \/s\/ Janet Jordan\n -------------------------------------\n Janet Jordan\n Vice President\n\n\n\n FLEET NATIONAL BANK\n \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\n \n S-5\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 S-1\n\n SCHEDULE I\n\n COMMITTMENTS\n\n\n-------------------------------------------------------------------------\nLender A Commitment ($)\n------ ----------------\n-------------------------------------------------------------------------\nCiticorp USA, Inc. $ 19,777,777.78\n-------------------------------------------------------------------------\nBank of America, N.A. $ 15,555,555.56\n-------------------------------------------------------------------------\nThe Hong Kong and Shanghai Bank $ 15,555,555.56\nCorporation Limited \n-------------------------------------------------------------------------\nMorgan Guaranty Trust Company of New York $ 10,000,000.00\n-------------------------------------------------------------------------\nThe Sumitomo Bank Limited $ 8,000,000.00\n-------------------------------------------------------------------------\nDeutsche Bank AG New York Branch and\/or $ 8,333,333.33\nCayman Islands Branch \n-------------------------------------------------------------------------\nSociete Generale $ 7,222,222.22\n-------------------------------------------------------------------------\nThe Fuji Bank, Limited $ 7,222,222.22\n-------------------------------------------------------------------------\nABN AMRO Bank N.V. $ 15,555,555.56\n-------------------------------------------------------------------------\nThe Bank of New York $ 7,222,222.22\n-------------------------------------------------------------------------\nBank One, NA f\/k\/a The First National $ 8,333,333.33\nBank of Chicago \n-------------------------------------------------------------------------\nU.S. Bank National Association $ 7,222,222.22\n-------------------------------------------------------------------------\nFleet National Bank $ 10,000,000.00\n-------------------------------------------------------------------------\nWells Fargo Bank, National Association $ 10,000,000.00\n-------------------------------------------------------------------------\n \n-------------------------------------------------------------------------\nTOTAL $150,000,000.00\n-------------------------------------------------------------------------\n\n \n Sch. II Page - 1\n\n SCHEDULE II\n\n<\/pre>\n
\n\n Name of Bank Domestic Lending Office Eurodollar Lending Office<\/p>\n
——————————————————————————————————-
\n
\nCiticorp USA, Inc. One Sansome Street, 28\/th\/ Floor One Sansome Street, 28\/th\/ Floor
\n San Francisco, CA 94104 San Francisco, CA 94104
\n Attn: Carolyn Wendler Attn: Carolyn Wendler
\n Tel: 415-627-6363 Tel: 415-627-6363
\n Fax: 415-433-0307 Fax: 415-433-0307
\n——————————————————————————————————-<\/p>\nBank of America, N.A. 1850 Gateway Blvd. Concord, 1850 Gateway Blvd. Concord,
\n CA 94520 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——————————————————————————————————-<\/p>\n
HSBC Bank USA 140 Broadway, 4th Floor 10 – Lower Thames St.
\n New York, NY 10005 3rd Floor
\n Attn: Anatasia London EC3R 6HH
\n Micklethwaite United Kingdom
\n Tel.: 212-658-1403 Telex: 885945 HSBC LDG
\n Fax: 212-658-2804 Fax: 011-44-171-260-0930
\n——————————————————————————————————-<\/p>\n
Morgan Guaranty Trust Morgan Guaranty Trust Morgan Guaranty Trust
\nCompany of New York Company of New York Company of New York
\n 60 Wall Street c\/o J.P. Morgan Services
\n New York, NY 10260 Euro-Loan Servicing Unit
\n Attn: Robert Bottamedi 500 Stanton Christiana Rd.
\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——————————————————————————————————-<\/p>\n
Deutsche Bank AG, New York 31 West 52nd St. 31 West 52nd St.
\nBranch and\/or Cayman Islands New York, NY 10019 New York, NY 10019
\nBranch Attn: Carmen Melendez Attn: Carmen Melendez
\n Tel: 212-469-4008 Tel: 212-469-4008
\n Fax: 212-469-4138 Fax: 212-469-4138<\/p>\n
——————————————————————————————————-<\/p>\n
The Sumitomo Bank, Limited, 555 California Street 555 California Street
\nSan Francisco Branch Suite 3350 Suite 3350
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Sch. II Page – 2<\/p>\n
\n\n Name of Bank Domestic Lending Office Eurodollar Lending Office<\/p>\n——————————————————————————————————-
\n
\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<\/p>\n——————————————————————————————————-<\/p>\n
ABN AMRO Bank, N.V. 208 South LaSalle, Ste. 1500 208 South LaSalle, Ste. 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——————————————————————————————————-<\/p>\n
Societe Generale 2029 Century Park East 2029 Century Park East
\n Suite 2900 Suite 2900
\n Los Angeles, CA 90067 Los Angeles, CA 90067
\n Attn: Tuliuh Wu Attn: Tuliuh Wu
\n Tel: 310-788-7117 Tel: 310-788-7117
\n Fax: 310-203-0539 Fax: 310-203-0539
\n——————————————————————————————————-<\/p>\n
The Fuji Bank, Limited 333 South Hope Street, 333 South Hope Street,
\n 39\/th\/ Floor 39\/th\/ Floor
\n Los Angeles, CA 90071 Los Angeles, CA 90071
\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——————————————————————————————————-<\/p>\n
The 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——————————————————————————————————-
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Sch. II Page – 3<\/p>\n
\n———————————————————————————————————
\n
\nU.S. Bank National Association 555 S.W. Oak Street, PL-4 555 S.W. Oak Street, PL-4
\n Portland, OR 97204 Portland, OR 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———————————————————————————————————<\/p>\nWells Fargo Bank, National 420 Montgomery Street 420 Montgomery Street
\nAssociation 9\/th\/ Floor 9\/th\/ Floor
\n 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<\/p>\n
=========================================================================================================<\/p>\n
Fleet 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=========================================================================================================<\/p>\n
Bank One, NA f\/k\/a The First 1 Bank One Plaza 1 Bank One Plaza
\nNational 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<\/p>\n
=========================================================================================================
\n<\/c><\/c><\/s><\/table>\n
Schedule III<\/p>\n
EXISTING LIENS<\/p>\n
None<\/p>\n
Schedule IV<\/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 V<\/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
\n or a rating of not less than P-2 by Moodys and A-2 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 or P-2 by Moodys and A-2 by S&P.<\/p>\n
Moodys = Moody’s Investors Service, Inc.
\n S&P = Standard & Poor’s Corporation<\/p>\n
Schedule VI<\/p>\n
PLANS:<\/p>\n
Gap VEBA Trust (Self-insured medical and dental claims)<\/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
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
____________
\n [Date]<\/p>\n
Attention:
\nLadies and Gentlemen:<\/p>\n
The undersigned, The Gap, Inc., refers to the Amended and Restated Credit
\nAgreement, dated as of ___________ __, 2000 (such Credit Agreement, as it may be
\namended, restated or otherwise modified, being the “Credit Agreement”, the terms
\ndefined therein being used herein as therein defined), among the undersigned,
\ncertain Lenders parties thereto, and Citicorp USA, Inc. as Agent for said
\nLenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
\nthe Credit Agreement that the undersigned hereby requests an A Borrowing under
\nthe Credit Agreement, and in that connection sets forth below the information
\nrelating to such A Borrowing (the “Proposed A Borrowing”) as required by Section
\n2.02(a) of the Credit Agreement:<\/p>\n
(i) The Business Day of the Proposed A Borrowing is _______, 200_.<\/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 $_________.<\/p>\n
(iv) The Interest Period for each A Advance made as part of the
\n Proposed A Borrowing is [____ days] [____ 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:<\/p>\n
(A) the representations and warranties contained in Section 5.01 are
\n correct, before and after giving effect to the Proposed A Borrowing and to
\n the application of the proceeds therefrom, as though made on and as of such
\n date; and<\/p>\n
__________________
\n* Specify alternative if 9 or 12 month Eurodollar Rate Interest Period is
\nrequested, but not available.<\/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 therefrom,
\n 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
____________
\n [Date]<\/p>\n
Attention:
\nLadies and Gentlemen:<\/p>\n
The undersigned, The Gap, Inc., refers to the Amended and Restated Credit
\nAgreement, dated as of _______ __, 2000 (such Credit Agreement, as it may be
\namended, restated or otherwise modified, being the “Credit Agreement”, the terms
\ndefined therein being used herein as therein defined), among the undersigned,
\ncertain Lenders parties thereto, and Citicorp USA, Inc. as Agent for said
\nLenders, and hereby gives you notice pursuant to Section 2.03 of the Credit
\nAgreement that the undersigned hereby requests a B Borrowing under the Credit
\nAgreement, and in that connection sets forth the terms on which such B Borrowing
\n(the “Proposed B Borrowing”) is requested to be made:<\/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 5.01 are
\n correct, before and after giving effect to the Proposed B Borrowing and to
\n the application of the proceeds therefrom, as though made on and as of such
\n date;<\/p>\n
(b) no event has occurred and is continuing, or would result from the
\n 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 <\/p>\n
___________________
\n* Address to each Lender if the Borrower is conducting the auction.<\/p>\n
an untrue statement of a material fact or omit to state any material fact
\n or any fact necessary to make the statements contained therein, in the
\n light of the circumstances under 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 Amended and Restated Credit Agreement dated as of
\n_______ __, 2000(such Credit Agreement, as it may be amended, restated or
\notherwise modified, being the “Credit Agreement”) among The Gap, Inc., a
\nDelaware corporation (the “Borrower”), the Lenders (as defined in the Credit
\nAgreement), and Citicorp USA, Inc. as Agent for the Lenders (the “Agent”).
\nTerms defined in the Credit Agreement are used herein 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 the Assignor’s A Commitment and the A Advances owing to
\nthe Assignor. After giving effect to such sale and assignment, the Assignee’s A
\nCommitment and the amount of the A Advances owing to the Assignee will be as set
\nforth in Section 2 of 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 the
\nperformance or observance by the Borrower of any of their respective obligations
\nunder the Credit Agreement or any other instrument or document furnished
\npursuant 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 5.01 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 Assignor or any other Lender and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit decisions in taking or not taking action under the Credit
\nAgreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
\nauthorizes the Agent to take such action on its behalf and to exercise such
\npowers under the Credit Agreement as are delegated to the Agent by the terms
\nthereof, together with such powers as are reasonably incidental thereto; (v)
\nagrees that it will perform in accordance with their terms all of the
\nobligations which by the terms of the Credit Agreement are required to be
\nperformed by it as a Lender; [and] (vi) specifies as its Domestic Lending Office
\n(and address for notices) and Eurodollar Lending Office the offices set forth
\nbeneath its name on the signature pages hereof and [(vii) attaches the forms
\nprescribed by the Internal Revenue Service of the United States certifying as to
\nthe Assignee’s status for purposes of determining exemption from United<\/p>\n
States withholding taxes with respect to all payments to be made to the Assignee
\nunder the Credit Agreement or such other documents as are necessary to indicate
\nthat all such payments are subject to such rates at a rate reduced by an
\napplicable 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”).<\/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 all payments under the Credit Agreement in
\nrespect of the interests assigned hereby (including, without limitation, all
\npayments of principal, interest and commitment fees with respect thereto) to the
\nAssignee. The Assignor and Assignee shall make all appropriate adjustments in
\npayments under the Credit Agreement for periods prior to the Effective Date
\ndirectly 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: ______<\/p>\n
Section 2.<\/p>\n
Assignee’s A Commitment: $_____
\nAggregate outstanding principal amount
\nof A Advances owing to Assignee: $_____<\/p>\n
Section 3.<\/p>\n
Effective Date*: ______, ___<\/p>\n
[NAME OF ASSIGNOR]<\/p>\n
By: _____________________<\/p>\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 dare 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
\n FORM OF AUCTION BORROWING NOTE<\/p>\n
U.S. $___________ Dated: ____________, ___<\/p>\n
FOR VALUE RECEIVED, the undersigned, THE GAP, INC., a Delaware corporation (the
\n“Borrower”), HEREBY PROMISES TO PAY to the order of ____________________ (the
\n“Lender”) for the account of its Applicable Lending Office (as defined in the
\nCredit Agreement referred to below), on _________, ___, the principal amount of
\n_______________________ Dollars ($ ________).<\/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 __________________________________,
\nin same day funds, free and clear of and without any deduction, with respect to
\nthe payee named above, subject to Section 3.02 of the Credit Agreement referred
\nto below, 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 Amended and Restated Credit Agreement, dated as of _____ __,
\n2000, among the Borrower, the Lender and certain other banks parties thereto,
\nand Citicorp USA, Inc., as Agent for the Lender and such other banks (such
\nCredit Agreement, as it may be amended, restated or otherwise modified, being
\nthe “Credit Agreement”). The Credit Agreement, among other things, contains
\nprovisions for acceleration of the maturity hereof upon the happening of certain
\nstated 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 with, the
\nlaws of the State of New York, United States, without reference to principles of
\nconflicts of laws.<\/p>\n
THE GAP, INC.<\/p>\n
By: _______________________________
\n Name:
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