\n| \n Percentage Per Annum<\/p>\n<\/td>\n | <\/td>\n | \n 0.100<\/p>\n<\/td>\n | <\/td>\n | \n 0.125<\/p>\n<\/td>\n | <\/td>\n | \n 0.150<\/p>\n<\/td>\n | <\/td>\n | \n 0.200<\/p>\n<\/td>\n | <\/td>\n | \n 0.250<\/p>\n<\/td>\n | <\/td>\n | \n 0.375<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 1<\/p>\n
\n“Base Rate<\/u>” means, for any period, a fluctuating interest rate per
\nannum as shall be in effect from time to time which rate per annum shall at all
\ntimes be equal to the highest of:<\/p>\n (a) the rate of interest announced publicly by the LC Issuer in New York, New
\nYork, from time to time, as the LC Issuer153s base rate;<\/p>\n (b) 1\/2% per annum above the latest three-week moving average of secondary
\nmarket morning offering rates in the United States for three-month certificates
\nof deposit of major United States money market banks, such three-week moving
\naverage being determined weekly on each Monday (or, if any such date is not a
\nBusiness Day, on the next succeeding Business Day) for the three-week period
\nending on the previous Friday by the LC Issuer on the basis of such rates
\nreported by certificate of deposit dealers to and published by the Federal
\nReserve Bank of New York or, if such publication shall be suspended or
\nterminated, on the basis of quotations for such rates received by the LC Issuer
\nfrom three New York certificate of deposit dealers of recognized standing
\nselected by the LC Issuer, in either case adjusted to the nearest 1\/4 of one
\npercent or, if there is no nearest 1\/4 of one percent, to the next higher 1\/4 of
\none percent; and<\/p>\n (c) 1\/2% per annum above the Federal Funds Rate.<\/p>\n “Business Day<\/u>” means a day of the year on which banks are not required
\nor authorized to close in New York City or San Francisco, California and a day
\non which wire transfers may be effectuated among member banks of the Federal
\nReserve System through use of the fedwire funds transfer system and if the
\napplicable Business Day relates to any Letter of Credit denominated in an
\nAlternative Currency, a day on which commercial banks are open for business in
\nthe country of issue of such Alternative Currency and on which dealings in such
\nAlternative Currency are carried on by such commercial banks in such country of
\nissue (if such Alternative Currency is other than the Euro) or if such
\nAlternative Currency is the Euro, a day on which the Trans-European Automated
\nReal-Time Gross Settlement Express Transfer (TARGET) System is in operation.\n<\/p>\n “Capital Lease<\/u>” of any Person means any lease of any property (whether
\nreal, personal or mixed) by such Person as lessee, which lease should, in
\naccordance with GAAP, be required to be accounted for as a capital lease on the
\nbalance sheet of such Person.<\/p>\n “Capital Lease Obligations<\/u>” means the obligations of any Person to pay
\nrent or other amounts under a Capital Lease, the amount of which is required to
\nbe capitalized on the balance sheet of such Person in accordance with GAAP.<\/p>\n<\/p>\n 2<\/p>\n
\n“CERCLA<\/u>” means the Comprehensive Environmental Response, Compensation,
\nand Liability Act of 1980, as amended (42 U.S.C. \u00a7 9601 et seq.), and any
\nregulations promulgated thereunder.<\/p>\n “Change of Control<\/u>” means the occurrence, after the date of this
\nAgreement, of (i) any Person or two or more Persons acting in concert acquiring
\nbeneficial ownership (within the meaning of Rule 13d-3 of the Securities and
\nExchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as
\namended), directly or indirectly, of securities of the Company (or other
\nsecurities convertible into such securities) representing 50% or more of the
\ncombined voting power of all securities of the Company entitled to vote in the
\nelection of directors; or (ii) during any period of up to 24 consecutive months,
\ncommencing before or after the date of this Agreement, individuals who at the
\nbeginning of such 24-month period were directors of the Company ceasing for any
\nreason to constitute a majority of the Board of Directors of the Company unless
\nthe Persons replacing such individuals were nominated by the Board of Directors
\nof the Company; or (iii) any Person or two or more Persons acting in concert
\nacquiring by contract or otherwise, or entering into a contract or arrangement
\nwhich upon consummation will result in its or their acquisition of, control over
\nsecurities of the Company (or other securities convertible into such securities)
\nrepresenting 50% or more of the combined voting power of all securities of the
\nCompany entitled to vote in the election of directors; provided<\/u>,
\nthat<\/u>, the Person or group of Persons referred to in clauses (i) and (iii)
\nof this definition of Change of Control shall not include any Person listed on
\nSchedule I hereto or any group of Persons in which one or more of the Persons
\nlisted on Schedule I are members.<\/p>\n “Confidential Information<\/u>” means certain non-public, confidential or
\nproprietary information and material disclosed, from time to time, either
\norally, in writing, electronically or in some other form by the Company in
\nconnection with the LC Facility Documents. Confidential Information shall
\ninclude, but not be limited to non-public, confidential or proprietary
\ninformation, trade secrets, know-how, inventions, techniques, processes,
\nalgorithms, software programs, documentation, screens, icons, schematics,
\nsoftware programs, source documents and other MIS related information;
\ncontracts, customer lists, financial information, financial forecasts, sales and
\nmarketing plans and information and business plans, products and product
\ndesigns; textile projections and results; ideas, designs and artwork for all
\ntypes of marketing, advertising, public relations and commerce (including ideas,
\ndesigns and artwork related to the World Wide Web and any Web Site of the
\nCompany or any Subsidiary); textile designs; advertising, strategies, plans and
\nresults; sourcing information; vendor lists, potential product labeling and
\nmarking ideas; all materials including, without limitation, documents, drawings,
\nsamples, sketches, designs, and any other information concerning, color palette
\nand color standards furnished to the LC Issuer by the Company or any Subsidiary;
\ncustomer base(s); and other non-public information relating to the Company153s or
\nany Subsidiary153s business.<\/p>\n “Consolidated<\/u>” and any derivative thereof each means, with reference
\nto the accounts or financial reports of any Person, the consolidated accounts or
\nfinancial reports of such Person and each Subsidiary of such Person determined
\nin accordance with GAAP, including principles of consolidation, consistent with
\nthose applied in the preparation of the Consolidated financial statements of the
\nCompany referred to in Section 5.01(e) hereof.<\/p>\n<\/p>\n 3<\/p>\n
\n“Constitutive Documents<\/u>” means, with respect to any Person, the
\ncertificate of incorporation or registration (including, if applicable,
\ncertificate of change of name), articles of incorporation or association,
\nmemorandum of association, charter, bylaws, certificate of limited partnership,
\npartnership agreement, trust agreement, joint venture agreement, certificate of
\nformation, articles of organization, limited liability company operating or
\nmembers agreement, joint venture agreement or one or more similar agreements,
\ninstruments or documents constituting the organization or formation of such
\nPerson.<\/p>\n “Debt<\/u>” of any Person means, without duplication, (i) all indebtedness
\nof such Person for borrowed money or for the deferred purchase price (excluding
\nany deferred purchase price that constitutes an account payable incurred in the
\nordinary course of business) of property or services, (ii) all obligations of
\nsuch Person in connection with any agreement to purchase, redeem, exchange,
\nconvert or otherwise acquire for value any capital stock of such Person or to
\npurchase, redeem or acquire for value any warrants, rights or options to acquire
\nsuch capital stock, now or hereafter outstanding, (iii) all obligations of such
\nPerson evidenced by bonds, notes, debentures, convertible debentures or other
\nsimilar instruments, (iv) all indebtedness created or arising under any
\nconditional sale or other title retention agreement (other than under any such
\nagreement which constitutes or creates an account payable incurred in the
\nordinary course of business) with respect to property acquired by such Person
\n(even though the rights and remedies of the seller or lender under such
\nagreement in the event of default, acceleration, or termination are limited to
\nrepossession or sale of such property), (v) all Capital Lease Obligations, (vi)
\nobligations under direct or indirect guaranties in respect of, and obligations
\n(contingent or otherwise) to purchase or acquire, or otherwise to assure a
\ncreditor against loss in respect of, indebtedness or obligations of others of
\nthe kinds referred to in clauses (i) through (v) above, (vii) all Debt referred
\nto in clause (i), (ii), (iii), (iv), (v), or (vi) above secured by (or for which
\nthe holder of such Debt has an existing right, contingent or otherwise, to be
\nsecured by) any lien, security interest or other charge or encumbrance upon or
\nin property (including, without limitation, accounts and contract rights) owned
\nby such Person, even though such Person has not assumed or become liable for the
\npayment of such Debt and (viii) all mandatorily redeemable preferred stock of
\nsuch Person, valued at the applicable redemption price, plus accrued and unpaid
\ndividends payable in respect of such redeemable preferred stock.<\/p>\n “Default<\/u>” means an event which would constitute an Event of Default
\nbut for the requirement that notice be given or time elapse, or both.<\/p>\n “Dollars<\/u>,” “dollars<\/u>” and the sign “$<\/u>” each means lawful
\nmoney of the United States.<\/p>\n “Domestic Subsidiary<\/u>” means, at any time, any of the direct or
\nindirect Subsidiaries of the Company that is incorporated or organized under the
\nlaws of any state of the United States of America or the District of Columbia.\n<\/p>\n<\/p>\n 4<\/p>\n
\n“EBITDA<\/u>” means, for any period, Net Income plus<\/u>, to the extent
\ndeducted in determining such Net Income, the sum of (a) Interest Expense, (b)
\nincome tax expense, (c) depreciation expense and (d) amortization expense, all
\ndetermined on a Consolidated basis for the Company and its Subsidiaries in
\naccordance with GAAP.<\/p>\n “Effective Date<\/u>” has the meaning specified in Section 4.01 hereof.\n<\/p>\n “Effective Date Rating<\/u>” means, with respect to the non-credit-enhanced
\nlong-term senior unsecured debt issued by the Company, BBB- by S&P and Baa3
\nby Moody153s.<\/p>\n “Eligible Assignee<\/u>” means (i) a commercial bank organized under the
\nlaws of the United States, or any State thereof, and having a combined capital
\nand surplus of at least $100,000,000; (ii) a commercial bank organized under the
\nlaws of any other country which is a member of the OECD, or a political
\nsubdivision of any such country, and having a combined capital and surplus of at
\nleast $100,000,000; provided<\/u>, that<\/u>, such bank is acting through a
\nbranch or agency located in the United States; (iii) a Person that is primarily
\nengaged in the business of commercial banking and that is (a) a Subsidiary of
\nthe LC Issuer, (b) a Subsidiary of a Person of which the LC Issuer is a
\nSubsidiary, or (c) a Person of which the LC Issuer is a Subsidiary; (iv) an
\nAffiliate of the LC Issuer; (v) except with respect to an assignment of the
\nobligation to Issue Letters of Credit, any other entity which is an “accredited
\ninvestor” (as defined in Regulation D under the Securities Act of 1933, as
\namended) which extends credit or buys loans as one of its businesses, including
\nbut not limited to, insurance companies, mutual funds and lease financing
\ncompanies; and (vi) any other Person acceptable to the LC Issuer and, provided
\nno Event of Default is continuing, the Company. No Account Party or any
\nAffiliate thereof shall be an Eligible Assignee.<\/p>\n “Environmental Law<\/u>” means any Requirement of Law relating to (a) the
\ngeneration, use, handling, transportation, treatment, storage, disposal, release
\nor discharge of Hazardous Substances, (b) pollution or the protection of the
\nenvironment, health, safety or natural resources or (c) occupational safety and
\nhealth, industrial hygiene, land use or the protection of human, plant or animal
\nhealth or welfare, including, without limitation, CERCLA, in each case as
\namended from time to time, and including the regulations promulgated and the
\nrulings issued from time to time thereunder.<\/p>\n “ERISA Affiliate<\/u>” means any trade or business (whether or not
\nincorporated) which is a member of a controlled group of which the Company or
\nany Subsidiary of the Company is a member or which is under common control with
\nthe Company or any Subsidiary of the Company within the meaning of Section 414
\nof the Internal Revenue Code of 1986, as amended from time to time, and the
\nregulations promulgated and rulings issued thereunder.<\/p>\n “ERISA<\/u>” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time, and the regulations promulgated and rulings issued
\nthereunder.<\/p>\n<\/p>\n 5<\/p>\n
\n“ERISA Event<\/u>” means a reportable event with respect to a Plan within
\nthe meaning of \u00a74043 of ERISA.<\/p>\n “Euro<\/u>” means the single currency of participating member states of the
\nEuropean Union.<\/p>\n “Events of Default<\/u>” has the meaning specified in Section 7.01 hereof.\n<\/p>\n “Existing Letter of Credit Agreement<\/u>” has the meaning specified in
\nPreliminary Statement (1).<\/p>\n “Existing Letters of Credit<\/u>” has the meaning specified in Section 2.10
\nhereof.<\/p>\n “Facility Amount<\/u>” means $125,000,000 as such amount may be reduced or
\nincreased from time to time in accordance with this Agreement.<\/p>\n “Federal Funds Rate<\/u>” means, for any period, a fluctuating interest
\nrate per annum equal for each day during such period to the weighted average of
\nthe rates on overnight Federal funds transactions with members of the Federal
\nReserve System arranged by Federal funds brokers, as published for such day (or,
\nif such day is not a Business Day, for the next preceding Business Day) by the
\nFederal Reserve Bank of New York, or, if such rate is not so published for any
\nday which is a Business Day, the average of the quotations for such day on such
\ntransactions received by the LC Issuer from three Federal funds brokers of
\nrecognized standing selected by it.<\/p>\n “Fiscal Quarter<\/u>” means any quarter in any Fiscal Year, the duration of
\nsuch quarter being defined in accordance with GAAP applied consistently with
\nthat applied in the preparation of the Company153s financial statements referred
\nto in Section 5.01 (e) hereof.<\/p>\n “Fiscal Year<\/u>” means a fiscal year of the Company and its Subsidiaries.\n<\/p>\n “Fixed Charge Coverage Ratio<\/u>” means, for any period, the ratio of (a)
\nthe amount equal to the sum of (i) Consolidated EBITDA and (ii) Lease Expense in
\neach case for the Company and its Subsidiaries for such period, to (b) the sum
\nof (i) Consolidated Interest Expense and (ii) Lease Expense, in each case for
\nthe Company and its Subsidiaries for such period.<\/p>\n “Foreign Subsidiary<\/u>” means, at any time, any direct or indirect
\nSubsidiary of the Company that is not a Domestic Subsidiary.<\/p>\n “Funded Debt<\/u>” means, as of any date of determination, all indebtedness
\n(including Capital Lease Obligations but excluding all accounts payable incurred
\nin the ordinary course of business) of the Company and its Subsidiaries on a
\nConsolidated basis that would (or would be required to) appear as liabilities
\nfor long-term Debt, short-term Debt, current maturities of Debt, and other
\nsimilar interest-bearing obligations on a Consolidated balance sheet of the
\nCompany and its Subsidiaries in accordance with GAAP.<\/p>\n<\/p>\n 6<\/p>\n
\n“GAAP<\/u>” means generally accepted accounting principles in the United
\nStates set forth in the opinions and pronouncements of the Accounting Principles
\nBoard and the American Institute of Certified Public Accountants and statements
\nand pronouncements of the Financial Accounting Standards Board or such other
\nprinciples as may be approved by a significant segment of the accounting
\nprofession in the United States, applied on a basis consistent (except for
\nchanges concurred in by the Company153s independent public accountants) with the
\nmost recent audited consolidated financial statements of the Company and its
\nSubsidiaries delivered pursuant to Section 6.04.<\/p>\n “Governmental Authority<\/u>” means any nation or government, any state,
\nprovince, city, municipal entity or other political subdivision thereof, and any
\ngovernmental, executive, legislative, judicial, administrative or regulatory
\nagency, department, authority, instrumentality, commission, board or similar
\nbody, whether federal, state, provincial, territorial, local or foreign.<\/p>\n “Governmental Authorization<\/u>” means any authorization, approval,
\nconsent, franchise, license, covenant, order, ruling, permit, certification,
\nexemption, notice, declaration or similar right, undertaking or other action of,
\nto or by, or any filing, qualification or registration with, any Governmental
\nAuthority.<\/p>\n “Hazardous Substance<\/u>” means (i) any hazardous substance or toxic
\nsubstance as such terms are presently defined or used in \u00a7 101(14) of CERCLA (42
\nU.S.C. \u00a7 9601(14)), in 33 U.S.C. \u00a7 1251 et. seq. (Clean Water Act), or 15 U.S.C.
\n \u00a7 2601 et. seq. (Toxic Substances Control Act) and (ii) as of any date of
\ndetermination, any additional substances or materials which are hereafter
\nincorporated in or added to the definition of “hazardous substance” or “toxic
\nsubstance” for purposes of CERCLA or any other applicable law.<\/p>\n “Hedge Agreements<\/u>” means (a) any and all interest rate swaps, basis
\nswaps, credit derivative transactions, forward rate transactions, commodity
\nswaps, commodity options, forward commodity contracts, equity or equity index
\nswaps or options, bond or bond price or bond index swaps or options or forward
\nbond or forward bond price or forward bond index transactions, interest rate
\noptions, forward foreign exchange transactions, cap transactions, floor
\ntransactions, collar transactions, currency swaps, cross-currency rate swaps,
\ncurrency options, spot contracts or any other similar transactions or any
\ncombination of any of the foregoing (including any options to enter into any of
\nthe foregoing), whether or not any such transaction is governed by or subject to
\nany master agreement, and (b) any and all transactions of any kind, and the
\nrelated confirmations, which are subject to the terms and conditions of, or
\ngoverned by, any form of master agreement published by the International Swaps
\nand Derivatives Association, Inc., the International Foreign Exchange Master
\nAgreement, or any other master agreement, including any such obligations or
\nliabilities under any such agreement.<\/p>\n “Information Memorandum<\/u>” means the information memorandum dated August
\n2004 prepared in connection with the Revolving Credit Agreement.<\/p>\n<\/p>\n 7<\/p>\n
\n“Interest Expense<\/u>” of any Person for any period means the aggregate
\namount of interest or fees paid, accrued or scheduled to be paid or accrued in
\nrespect of any Debt (including the interest portion of rentals under Capital
\nLeases) and all but the principal component of payments in respect of
\nconditional sales, equipment trust or other title retention agreements paid,
\naccrued or scheduled to be paid or accrued by such Person during such period,
\nnet of interest income, determined in accordance with GAAP.<\/p>\n “Issue<\/u>” means, with respect to any Letter of Credit, either to issue,
\nor to extend the expiry of, or to renew, or to increase the amount of, such
\nLetter of Credit, and the term “Issued” or “Issuance” shall have corresponding
\nmeanings.<\/p>\n “LC Collateral Account<\/u>” means a deposit account in the name of the
\nCompany to be designated by the LC Issuer from time to time in which cash has
\nbeen deposited as collateral security for the reimbursement of drawings under
\nany outstanding Letters of Credit in accordance with Sections 2.15 and 7.01.\n<\/p>\n “LC Facility Documents<\/u>” means, collectively, this Agreement, and each
\napplication or agreement and other documents delivered in connection with
\nLetters of Credit pursuant to Section 2.03 hereof, in each case as amended,
\nsupplemented or otherwise modified hereafter from time to time in accordance
\nwith the terms thereof and Section 8.01 hereof.<\/p>\n “LC Issuer<\/u>” means JPMorgan Chase Bank or any Affiliate thereof as
\nagreed to from time to time by the Company and the LC Issuer, that may from time
\nto time Issue Letters of Credit for the account of the Company or for the
\naccount of any LC Subsidiary.<\/p>\n “LC Subsidiary<\/u>” means, as of the date hereof, the Subsidiaries of the
\nCompany listed on Schedule III hereto and, after the date hereof, any other
\nSubsidiary of the Company that may from time to time become a party hereto and
\nin connection therewith such other Subsidiary shall execute such documents as
\nare reasonably requested by the LC Issuer to evidence its agreement to be bound
\nhereunder as an LC Subsidiary, and for whose account the LC Issuer may from time
\nto time Issue Letters of Credit.<\/p>\n “Lease Expense<\/u>” means, with respect to any Person, for any period for
\nsuch Person and its subsidiaries on a Consolidated basis, lease and rental
\nexpense accrued during such period under all leases and rental agreements, other
\nthan Capital Leases and leases of personal property, determined in conformity
\nwith GAAP.<\/p>\n “Letter of Credit<\/u>” means a Trade Letter of Credit which is in form and
\nsubstance satisfactory to the LC Issuer, as amended, supplemented or otherwise
\nmodified from time to time.<\/p>\n “Letter of Credit Liability<\/u>” means, as of any date of determination,
\nall then existing liabilities of the Company and the LC Subsidiaries to the LC
\nIssuer in respect of the Letters of Credit Issued for the Company153s account and
\nfor the account of the LC Subsidiaries, whether such liability is contingent or
\nfixed, and shall, in each case, consist of the sum of (i) the aggregate maximum
\namount (the determination of such maximum amount to assume compliance with all
\nconditions for drawing) then available to be drawn<\/p>\n<\/p>\n 8<\/p>\n
\nunder such Letters of Credit (including, without limitation, amounts
\navailable under such Letters of Credit for which a draft has been presented but
\nnot yet honored) and (ii) the aggregate amount which has then been paid by, and
\nnot been reimbursed to, the LC Issuer under such Letters of Credit. For the
\npurposes of determining the Letter of Credit Liability, the face amount of
\nLetters of Credit outstanding in an Alternative Currency shall be expressed as
\nthe equivalent of such Alternative Currency in Dollars as determined in Section
\n2.11(a) hereof.<\/p>\n “Leverage Ratio<\/u>” means, as of any date of determination, the ratio of
\n(a) the amount equal to Consolidated Funded Debt for the most recently completed
\nfour consecutive Fiscal Quarters ending on or prior to such date, to (b)
\nConsolidated EBITDA for the most recently completed four consecutive Fiscal
\nQuarters ending on or prior to such date, in each case for the Company and its
\nSubsidiaries as of such date.<\/p>\n “Lien<\/u>” means any assignment, chattel mortgage, pledge or other
\nsecurity interest or any mortgage, deed of trust or other lien, or other charge
\nor encumbrance, upon property or rights (including after acquired property or
\nrights), or any preferential arrangement with respect to property or rights
\n(including after acquired property or rights) which has the practical effect of
\nconstituting a security interest or lien.<\/p>\n “Loan Party<\/u>” has the meaning assigned to such term in the Revolving
\nCredit Agreement.<\/p>\n “Margin Stock<\/u>” has the meaning assigned to such term in Regulation U
\nof the Board of Governors of the Federal Reserve System, as in effect from time
\nto time.<\/p>\n “Material Adverse Change<\/u>” means any material adverse change in the
\nbusiness, condition (financial or otherwise), results of operations, or
\nprospects of the Company and its Subsidiaries, taken as a whole;
\nprovided<\/u>, that<\/u> a downgrade of the Company153s public debt ratings or
\na Negative Pronouncement shall not by itself be deemed to be a material adverse
\nchange; provided<\/u>, further<\/u>, the occurrence or subsistence of any
\nsuch material adverse change which has been disclosed (a) by the Company in any
\nfiling made with the Securities and Exchange Commission prior to the date of
\nthis Agreement, (b) by the Company in a public announcement prior to the date of
\nthis Agreement, or (c) in the Information Memorandum, shall not constitute a
\nMaterial Adverse Change.<\/p>\n “Material Adverse Effect<\/u>” means a material adverse effect on the
\nfinancial condition or results of operations of the Company and its Subsidiaries
\ntaken as a whole.<\/p>\n “Material LC Subsidiary<\/u>” means, at any date of determination, an LC
\nSubsidiary that, either individually or together with its Subsidiaries, taken as
\na whole, has assets exceeding <\/u> percent ( <\/u>%) of the consolidated
\ntotal assets of the Company and its Subsidiaries as at the end of the
\nimmediately preceding fiscal year.<\/p>\n “Moody153s<\/u>” means Moody153s Investors Service, Inc.<\/p>\n “Multiemployer Plan<\/u>” means a “multiemployer plan” as defined in
\nSection 4001(a)(3) of ERISA to which the Company or any Subsidiary of the
\nCompany or any<\/p>\n<\/p>\n 9<\/p>\n
\nERISA Affiliate is making or accruing an obligation to make contributions or
\nhas within any of the preceding five plan years made or accrued an obligation to
\nmake contributions.<\/p>\n “Negative Pronouncement<\/u>” means a public announcement by either S&P
\nor Moody153s in respect to a possible downgrade of, or negative outlook with
\nrespect to, the public debt rating of the Company.<\/p>\n “Net Income<\/u>” of any Person means, for any period, net income before
\n(i) extraordinary items, (ii) the results of discontinued operations and (iii)
\nthe effect of any cumulative change in accounting principles, determined in
\naccordance with GAAP.<\/p>\n “Obligation<\/u>” means, with respect to any Person, any payment,
\nperformance or other obligation of such Person of any kind, including, without
\nlimitation, any liability of such Person on any claim, whether or not the right
\nof any creditor to payment in respect of such claim is reduced to judgment,
\nliquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
\nlegal, equitable, secured or unsecured, and whether or not such claim is
\ndischarged, stayed or otherwise affected by any proceeding referred to in
\nSection 7.01(e) hereof. Without limiting the generality of the foregoing, the
\nObligations of the Account Parties under the LC Facility Documents include (a)
\nthe obligation to pay any reimbursement amount, interest, commissions, charges,
\nexpenses, fees, attorneys153 fees and disbursements, indemnity payments and other
\namounts payable by any Account Party under any LC Facility Document and (b) the
\nobligation of any Account Party to reimburse any amount in respect of any of the
\nforegoing items that the LC Issuer, in its sole discretion, may elect to pay or
\nadvance on behalf of such Account Party.<\/p>\n “OECD<\/u>” means the Organization for Economic Cooperation and
\nDevelopment.<\/p>\n “Other LC Facilities<\/u>” means the letter of credit facilities entered
\ninto on or about the date hereof among the Company, the L\/C Subsidiaries and
\neach of Bank of America, N.A., HSBC Bank, National Association and JPMorgan
\nChase Bank, each on terms substantially similar to the terms hereof and of the
\n364-Day Agreement, respectively, as each such agreement may be replaced,
\namended, supplemented or otherwise modified from time to time.<\/p>\n “Other Taxes<\/u>” has the meaning specified in Section 3.02(b) hereof.\n<\/p>\n “Payment Office<\/u>” means the office of the LC Issuer as shall be from
\ntime to time selected by the LC Issuer and notified by the LC Issuer to the
\nCompany and the LC Subsidiaries.<\/p>\n<\/p>\n 10<\/p>\n
\n“Performance Level<\/u>” means Performance Level 1, Performance Level 2,
\nPerformance Level 3, Performance Level 4, Performance Level 5, or Performance
\nLevel 6, as identified by reference to the public debt rating and Leverage Ratio
\nin effect on such date as set forth below:<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Performance Level<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Public Debt Rating<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n Level 1<\/p>\n<\/td>\n | <\/td>\n | \n Long-term senior unsecured Debt of the Company rated at least
\nA-<\/strong> by S&P or A3<\/strong> by Moody153s or
\n<\/em>the Leverage Ratio is less than or <\/em>equal to 1.25:1.00<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level 2<\/p>\n<\/td>\n | <\/td>\n | \n Long-term senior unsecured Debt of the Company rated less than Level 1 but at
\nleast BBB+<\/strong> by S&P or <\/em>Baa1<\/strong> by
\nMoody153s or <\/em>the Leverage Ratio is less than or equal to 1.25:1.00<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level 3<\/p>\n<\/td>\n | <\/td>\n | \n Long-term senior unsecured Debt of the Company rated less than Level 2 but at
\nleast BBB<\/strong> by S&P or <\/em>Baa2<\/strong> by
\nMoody153s or <\/em>the Leverage Ratio is less than or equal to 1.25:1.00<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level 4<\/p>\n<\/td>\n | <\/td>\n | \n Long-term senior unsecured Debt of the Company rated less than Level 3 but at
\nleast BBB-<\/strong> by S&P or <\/em>Baa3<\/strong> by
\nMoody153s or <\/em>the Leverage Ratio is less than or equal to 1.50:1.00<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level 5<\/p>\n<\/td>\n | <\/td>\n | \n Long-term senior unsecured Debt of the Company rated less than Level 4 but at
\nleast BB+<\/strong> by S&P or <\/em>Ba1<\/strong> by
\nMoody153s or <\/em>the Leverage Ratio is less than or equal to 1.75:1.00<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level 6<\/p>\n<\/td>\n | <\/td>\n | \n Long-term senior unsecured Debt of the Company rated less than Level 5
\nor <\/em>the Leverage Ratio is greater than 1.75:1.00<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\nFor purposes of this definition, the Performance Level shall be determined by
\nthe applicable public debt rating or Leverage Ratio as follows: (a) the public
\ndebt ratings above shall be determined as follows: (i) the public debt ratings
\nshall be determined by the then-current rating announced by either S&P or
\nMoody153s, as the case may be, for any class of non-credit-enhanced long-term
\nsenior unsecured debt issued by the Company, (ii) if only one of S&P and
\nMoody153s shall have in effect a public debt rating, the Performance Level shall
\nbe determined by reference to the available rating; (iii) if neither S&P nor
\nMoody153s shall have in effect a public debt rating, the applicable Performance
\nLevel will be Performance Level 6; (iv) if the ratings on the Company153s
\nlong-term senior unsecured debt established by S&P and Moody153s shall fall
\nwithin different levels, the public debt rating will be determined by the higher
\nof the two ratings, provided<\/u>, that<\/u>, in the event that the lower of
\nsuch ratings is more than one level below the higher of such ratings, the public
\ndebt rating will be determined based upon the level that is one level above the
\nlower of such ratings; (v) if any rating established by S&P or Moody153s shall
\nbe changed, such change shall be effective as of the date on which such change
\nis first announced publicly by the rating agency making such change; and (vi) if
\nS&P or Moody153s shall change the basis on which ratings are established, each
\nreference to the public debt rating announced by S&P or Moody153s, as the case
\nmay be, shall refer to the then equivalent rating by S&P or Moody153s, as the
\ncase may be; (b) the Leverage Ratio shall be determined on the basis of the most
\nrecent certificate of the Company to be delivered pursuant to Section 6.04(c)
\nfor the most recently ended Fiscal Quarter or Fiscal Year and any change in the
\nLeverage Ratio shall be<\/p>\n<\/p>\n 11<\/p>\n
\neffective one Business Day after the date on which the LC Issuer receives
\nsuch certificate; provided<\/u>, that<\/u> until the Company has delivered
\nto the LC Issuer such certificate pursuant to Section 6.04(c) in respect of the
\nfirst Fiscal Quarter of 2005, the Leverage Ratio shall be deemed to be at Level
\n3; provided<\/u>, further<\/u>, that for so long as the Company has not
\ndelivered such certificate when due pursuant to Section 6.04(c), the Leverage
\nRatio shall be deemed to be at the level set forth in Level 6 until the
\nrespective certificate is delivered to the LC Issuer; and (c) the Performance
\nLevel shall be determined in accordance with the Company153s respective public
\ndebt rating and Leverage Ratio, provided<\/u>, that<\/u>, if the Company153s
\npublic debt rating and the Leverage Ratio shall fall within different levels,
\nthe Performance Level will be determined by the higher of the public debt rating
\nand the Leverage Ratio, provided<\/u>, further<\/u>, that<\/u>, in the
\nevent that the lower of the Company153s public debt rating and the Leverage Ratio
\nis more than one level below the higher of the Company153s public debt rating and
\nthe Leverage Ratio, the Performance Level shall be determined based upon the
\nlevel that is one level above the lower of the Company153s public debt rating and
\nthe Leverage Ratio.<\/p>\n “Permitted Liens<\/u>” means:<\/p>\n (i) Liens for taxes, assessments or governmental charges or levies to the
\nextent not past due or to the extent contested, in good faith, by appropriate
\nproceedings and for which adequate reserves have been established;<\/p>\n (ii) Liens imposed by law, such as materialman153s, mechanic153s, carrier153s,
\nworker153s, landlord153s and repairman153s Liens and other similar Liens arising in
\nthe ordinary course of business which relate to obligations which are not
\noverdue for a period of more than 30 days or which are being contested in good
\nfaith, by appropriate proceedings and for which reserves required by GAAP have
\nbeen established;<\/p>\n (iii) pledges or deposits in the ordinary course of business to secure
\nobligations (including to secure letters of credit posted in connection
\ntherewith) under worker153s compensation or unemployment laws or similar
\nlegislation or to secure the performance of leases or contracts (including
\ninsurance contracts issued by insurance companies which are Subsidiaries of the
\nCompany) entered into in the ordinary course of business or of public or
\nstatutory obligations, bids, or appeal bonds;<\/p>\n (iv) zoning restrictions, easements, licenses, landlord153s Liens or
\nrestrictions on the use of property which do not materially impair the use of
\nsuch property in the operation of the business of the Company or any of its
\nSubsidiaries;<\/p>\n (v) Liens upon assets subject to a Capital Lease and securing payment of the
\nobligations arising under such Capital Lease;<\/p>\n (vi) Liens of the Company and its Subsidiaries not described in the foregoing
\nclauses (i) through (v) existing on the Effective Date and listed on Schedule
\nVIII and any extensions, renewals or replacements of such Liens for the same or
\nlesser amount, provided<\/u>, that<\/u>, no such extension, renewal or
\nreplacement shall extend to or cover any property not theretofore subject to the
\nLien being extended, renewed or replaced;<\/p>\n<\/p>\n 12<\/p>\n
\n(vii) judgment Liens in respect of judgments that do not constitute an Event
\nof Default under Section 7.01(f); and<\/p>\n (viii) Liens arising out of or pursuant to this Agreement and the Other LC
\nFacilities.<\/p>\n “Person<\/u>” means an individual, partnership, limited liability company,
\ncorporation (including a business trust), joint stock company, trust,
\nunincorporated association, joint venture or other entity, or a government or
\nany political subdivision or agency thereof.<\/p>\n “Plan<\/u>” means an employee benefit plan (other than a Multiemployer
\nPlan) maintained by the Company, any Subsidiary of the Company or any ERISA
\nAffiliate for its employees and subject to Title IV of ERISA.<\/p>\n “Requirements of Law<\/u>” means, with respect to any Person, all laws,
\nconstitutions, statutes, treaties, ordinances, rules and regulations, all
\norders, writs, decrees, injunctions, judgments, determinations and awards of an
\narbitrator, a court or any other Governmental Authority, and all Governmental
\nAuthorizations, binding upon or applicable to such Person or to any of its
\nproperties, assets or businesses.<\/p>\n “Responsible Officer<\/u>” means, with respect to any certificate, report
\nor notice to be delivered or given hereunder, unless the context otherwise
\nrequires, the president, chief executive officer, chief financial officer or
\ntreasurer of the Company or other executive officer of the Company who in the
\nnormal performance of his or her operational duties would have knowledge of the
\nsubject matter relating to such certificate, report or notice.<\/p>\n “Revolving Credit Agreement<\/u>” means that certain Revolving Credit
\nAgreement dated as of August 30, 2004 between the Company, certain of its
\nSubsidiaries and the banks and financial institutions listed therein, as such
\nagreement may be replaced, amended, supplemented or otherwise modified from time
\nto time.<\/p>\n “S&P<\/u>” means Standard & Poor153s, a division of The McGraw-Hill
\nCompanies, Inc.<\/p>\n “Subsidiary<\/u>” means, with respect to any Person, any corporation,
\npartnership, trust or other Person of which more than 50% of the outstanding
\ncapital stock (or similar property right in the case of partnerships and trusts
\nand other Persons) having ordinary voting power to elect a majority of the board
\nof directors of such corporation (or similar governing body or Person with
\nrespect to partnerships and trusts and other Persons) (irrespective of whether
\nor not at the time capital stock of any other class or classes of such
\ncorporation shall or might have voting power upon the occurrence of any
\ncontingency) is at the time directly or indirectly owned by such Person, by such
\nPerson and one or more other Subsidiaries of such Person, or by one or more
\nother Subsidiaries of such Person.<\/p>\n “Subsidiary LC Obligations<\/u>” has the meaning specified in Section
\n2.12(b) hereof.<\/p>\n<\/p>\n 13<\/p>\n
\n“Tangible Net Worth<\/u>” means the consolidated shareholder153s equity of
\nthe Company and its Subsidiaries, determined in accordance with GAAP less
\ngoodwill and other intangibles (other than patents, trademarks, licenses,
\ncopyrights and other intellectual property and prepaid assets).<\/p>\n “Taxes<\/u>” has the meaning specified in Section 3.02(a) hereof.<\/p>\n ” <\/sup>Termination Date<\/u>” means the third anniversary of the date
\nof this Agreement, or the earlier date of termination of the obligation of the
\nLC Issuer to issue Letters of Credit pursuant to Section 7.01 hereof.<\/p>\n“364-Day Agreement<\/u>” has the meaning set forth in the Preliminary
\nStatements hereto.<\/p>\n “Total Assets<\/u>” means, as of any date of determination, the
\nconsolidated assets of the Company and its Subsidiaries at the end of the Fiscal
\nQuarter immediately preceding such date, determined in accordance with GAAP.\n<\/p>\n “Trade Letter of Credit<\/u>” means a direct-pay trade or documentary
\nletter of credit issued for the benefit of a vendor in connection with the
\npurchase of goods by the Company or any of its Subsidiaries in the ordinary
\ncourse of business.<\/p>\n “UCP<\/u>” has the meaning specified in Section 2.08 hereof.<\/p>\n “Withdrawal Liability<\/u>” has the meaning specified in Part I of Subtitle
\nE of Title IV of ERISA.<\/p>\n SECTION 1.02 Computation of Time Periods<\/u>. In this Agreement in the
\ncomputation of periods of time from a specified date to a later specified date,
\nthe word “from” means “from and including” and the words “to” and “until” each
\nmeans “to but excluding”.<\/p>\n SECTION 1.03 Accounting Terms<\/u>. All accounting terms not specifically
\ndefined herein shall be construed in accordance with GAAP applied in a
\nconsistent manner with that applied in the preparation of the financial
\nstatements referred to in Section 5.01 (e) hereof.<\/p>\n ARTICLE II <\/strong><\/p>\nAMOUNTS AND TERMS OF LETTERS OF CREDIT <\/strong><\/p>\nSECTION 2.01 Letters of Credit<\/u>. The LC Issuer agrees, on the terms and
\nconditions hereinafter set forth, to Issue for the account of the Company or any
\nLC Subsidiary, one or more Letters of Credit from time to time during the period
\nfrom the date of this Agreement until the day that is five Business Days prior
\nto the Termination Date in an aggregate undrawn amount not to exceed at any time
\nthe Facility Amount in effect at such time (inclusive of the Dollar equivalent
\nof Letters of Credit Issued in Euro, or in any other Alternative Currency if the
\nLC Issuer agrees to issue Letters of Credit in such other Alternative Currency),
\neach such Letter of Credit upon its Issuance to expire on or before the date
\nwhich occurs one year from the date of its initial Issuance; provided<\/u>,
\nhowever, that the LC Issuer shall not be obligated to, and shall not, Issue any
\nLetter of Credit if:<\/p>\n (a) after giving effect to the Issuance of such Letter of Credit, the then
\noutstanding aggregate amount of all Letter of Credit Liability shall exceed the
\nFacility Amount then in effect; or<\/p>\n<\/p>\n 14<\/p>\n
\n(b) the LC Issuer shall have notified the Company that no further Letters of
\nCredit are to be Issued by the LC Issuer due to failure to meet any of the
\napplicable conditions set forth in Article IV, and such notice has not been
\nwithdrawn.<\/p>\n Within the limits of the obligations of the LC Issuer set forth above and in
\nSection 2.02 hereof, the Company and each LC Subsidiary may request the LC
\nIssuer to Issue one or more Letters of Credit, reimburse the LC Issuer for
\npayments made thereunder pursuant to Section 2.04(a) hereof and request the LC
\nIssuer to Issue one or more additional Letters of Credit under this Section
\n2.01.<\/p>\n SECTION 2.02 Limitation on Obligation to Issue Letters of Credit
\nDenominated in Alternative Currencies<\/u>. The LC Issuer agrees to Issue from
\ntime to time Letters of Credit denominated in Euro and in its sole discretion
\nupon request agrees to Issue from time to time Letters of Credit denominated in
\nother Alternative Currencies, provided<\/u>, that<\/u> the LC Issuer shall
\nnot be obligated to Issue any Letter of Credit denominated in Euro if, after
\ngiving effect to the Issuance of any such Letter of Credit denominated in Euro,
\nthe then outstanding aggregate amount of all Letter of Credit Liability with
\nrespect to all Letters of Credit denominated in Euro equals or exceeds (on a
\nDollar equivalent basis) $50,000,000.<\/p>\n SECTION 2.03 Issuing the Letters of Credit<\/u>. Each Letter of Credit
\nshall be Issued on a Business Day on reasonable prior notice by hand delivery,
\ntelecopier or transmitted by electronic communication (if arrangements for doing
\nso have been approved by the LC Issuer) from the Company or any LC Subsidiary,
\nas the case may be, to the LC Issuer as provided in the application and
\nagreement governing such Letter of Credit specifying the date, amount, currency,
\nexpiry and beneficiary thereof, accompanied by such documents as the LC Issuer
\nmay specify to the Company or LC Subsidiary, as the case may be, in form and
\nsubstance satisfactory to the LC Issuer. On the date specified by the Company or
\nLC Subsidiary, as the case may be, in such notice and upon fulfillment of the
\napplicable conditions set forth in Section 2.01 hereof, the LC Issuer will Issue
\nsuch Letter of Credit.<\/p>\n SECTION 2.04 Reimbursement Obligations<\/u>. The Company or the appropriate
\nLC Subsidiary, as the case may be, shall:<\/p>\n (a) pay to the LC Issuer an amount equal to, and in reimbursement for, each
\namount which the LC Issuer pays under any Letter of Credit not later than the
\ndate which occurs one Business Day after notice from the LC Issuer to the
\nCompany of the payment of such amount by the LC Issuer under such Letter of
\nCredit; and<\/p>\n (b) pay to the LC Issuer interest on each amount which the LC Issuer pays
\nunder any Letter of Credit from the date on which the LC Issuer pays such amount
\nuntil such amount is reimbursed in full to the LC Issuer pursuant to subclause
\n(i) above, payable on demand, at a fluctuating rate per annum equal to 2% per
\nannum above the Base Rate in effect from time to time.<\/p>\n<\/p>\n 15<\/p>\n
\nSECTION 2.05 Letter of Credit Facility Fees<\/u>. The Company hereby agrees
\nto pay to the LC Issuer a letter of credit facility fee, accruing from the date
\nhereof until the Termination Date, at a rate per annum equal to the Applicable
\nMargin in effect from time to time (i) on the Facility Amount in effect from
\ntime to time from and after such date (regardless of the actual or deemed usage
\nthereof), payable quarterly in arrears on the last day of each January, April,
\nJuly and October and on the Termination Date and (ii) on the aggregate amount of
\nLetter of Credit Liability under all Letters of Credit that are outstanding
\nbeyond the Termination Date payable in arrears on the last day of each January,
\nApril, July and October after the Termination Date and on the first day after
\nthe Termination Date on which no Letters of Credit are outstanding.<\/p>\n SECTION 2.06 Indemnification; Nature of the LC Issuer153s Duties<\/u>. (a)
\nThe Company agrees to indemnify and save harmless the LC Issuer from and against
\nany and all claims, demands, liabilities, damages, losses, costs, charges and
\nexpenses (including reasonable attorneys153 fees) which the LC Issuer may incur or
\nbe subject to as a consequence, direct or indirect, of (i) the Issuance of any
\nLetter of Credit or (ii) any action or proceeding relating to a court order,
\ninjunction, or other process or decree restraining or seeking to restrain the LC
\nIssuer from paying any amount under any Letter of Credit; provided<\/u>,
\nthat<\/u>, the LC Issuer shall not be indemnified for any of the foregoing
\ncaused by its gross negligence or willful misconduct.<\/p>\n (b) The obligations of the Company and each LC Subsidiary hereunder with
\nrespect to Letters of Credit shall be unconditional and irrevocable, and shall
\nbe paid strictly in accordance with the terms hereof under all circumstances,
\nincluding, without limitation, any of the following circumstances:<\/p>\n (a) any lack of validity or enforceability of any Letter of Credit or this
\nAgreement or any agreement or instrument relating thereto;<\/p>\n (b) the existence of any claim, setoff, defense or other right which the
\nCompany or any LC Subsidiary may have at any time against the beneficiary, or
\nany transferee, of any Letter of Credit, the LC Issuer, or any other Person;\n<\/p>\n (c) any draft, certificate, or other document presented under any Letter of
\nCredit proving to be forged, fraudulent, invalid or insufficient in any respect
\nor any statement therein being untrue or inaccurate in any respect;<\/p>\n (d) any lack of validity, effectiveness, or sufficiency of any instrument
\ntransferring or assigning or purporting to transfer or assign any Letter of
\nCredit or the rights or benefits thereunder or proceeds thereof, in whole or in
\npart;<\/p>\n (e) any loss or delay in the transmission or otherwise of any document
\nrequired in order to make a drawing under any Letter of Credit or of the
\nproceeds thereof;<\/p>\n<\/p>\n 16<\/p>\n
\n(f) any exchange, release or non-perfection of any collateral, or any release
\nor non-perfection of any collateral, or any release or amendment or waiver of or
\nconsent to departure from any guarantee, for all or any of the obligations of
\nthe Company or an LC Subsidiary in respect of the Letters of Credit;<\/p>\n (g) any change in the time, manner or place of payment of, or in any other
\nterms of, all or any of the obligations of the Company or any LC Subsidiary in
\nrespect of the Letters of Credit or any other amendment or waiver of or any
\nconsent to departure from all or any of this Agreement;<\/p>\n (h) any failure of the beneficiary of a Letter of Credit to strictly comply
\nwith the conditions required in order to draw upon any Letter of Credit;<\/p>\n (i) any misapplication by the beneficiary of any Letter of Credit of the
\nproceeds of any drawing under such Letter of Credit; or<\/p>\n (j) any other circumstance or happening whatsoever, whether or not similar to
\nthe foregoing;<\/p>\n provided<\/u>, that<\/u>, notwithstanding the foregoing, the LC Issuer
\nshall not be relieved of any liability it may otherwise have as a result of its
\ngross negligence or willful misconduct.<\/p>\n SECTION 2.07 Increased Costs<\/u>. (a) Change in Law<\/u>. If, at any
\ntime after the date of this Agreement, any change in any law or regulation or in
\nthe interpretation thereof by any court or administrative or governmental
\nauthority charged with the administration thereof shall either (i) impose,
\nmodify or deem applicable any reserve, special deposit or similar requirement
\nagainst letters of credit or guarantees issued by, or assets held by or deposits
\nin or for the account of, the LC Issuer or (ii) impose on the LC Issuer any
\nother condition regarding this Agreement or the Letters of Credit or any
\ncollateral thereon, and the result of any event referred to in clause (i) or
\n(ii) above shall be to increase the cost (other than an increase in taxes, which
\nincrease is dealt with exclusively in Article III) to the LC Issuer of issuing,
\nmaintaining or funding the Letters of Credit, then, upon demand by the LC
\nIssuer, the Company shall pay to the LC Issuer, from time to time as specified
\nby the LC Issuer, additional amounts sufficient to compensate the LC Issuer for
\nsuch increased cost; provided<\/u>, that<\/u>, the Company shall have no
\nobligation to reimburse the LC Issuer for increased costs incurred more than 60
\ndays prior to the date of such demand. A certificate as to the amount of such
\nincreased cost setting forth the basis for the calculation of such increased
\ncosts, submitted by the LC Issuer to the Company, shall be conclusive and
\nbinding for all purposes, absent manifest error.<\/p>\n (b) Capital<\/u>. If, at any time after the date of this Agreement, the LC
\nIssuer determines that compliance with any law or regulation or any guideline or
\nrequest from any central bank or other governmental authority (whether or not
\nhaving the force of law) affects or would affect the amount of capital required
\nor expected to be maintained by the LC Issuer or any corporation controlling the
\nLC Issuer and that the amount of such capital is increased by or based upon the
\nexistence of the LC Issuer153s commitment hereunder and other commitments of this
\ntype or the issuance of the Letters of Credit (or similar contingent
\nobligations), then, upon written demand by the LC Issuer, the<\/p>\n<\/p>\n 17<\/p>\n
\nCompany shall pay to the LC Issuer, from time to time as specified by the LC
\nIssuer, additional amounts sufficient to compensate the LC Issuer or such
\ncorporation in the light of such circumstances, to the extent that the LC Issuer
\nreasonably determines such increase in capital to be allocable to the existence
\nof the LC Issuer153s commitment hereunder; provided<\/u>, that<\/u>, the
\nCompany shall have no obligation to pay such compensatory amounts that relate to
\nan actual increase in the capital of the LC Issuer undertaken by the LC Issuer
\nmore than 60 days prior to the date of such demand. A certificate as to such
\namounts setting forth the basis for the calculation of such amount submitted to
\nthe Company by the LC Issuer shall be conclusive and binding for all purposes,
\nabsent manifest error.<\/p>\n (c) Without prejudice to the survival of any other agreement of the Company
\nhereunder, the agreements and obligations of the Company contained in this
\nSection 2.07 shall survive the payment in full (after the Termination Date) of
\nall Obligations.<\/p>\n (d) Without affecting its rights under Sections 2.07(a) or 2.07(b) hereof or
\nany other provision of this Agreement, the LC Issuer agrees that if there is any
\nincrease in any cost to or reduction in any amount receivable by the LC Issuer
\nwith respect to which the Company would be obligated to compensate the LC Issuer
\npursuant to Sections 2.07(a) or 2.07(b) hereof, the LC Issuer shall use
\nreasonable efforts to select an alternative Applicable Issuing Office, which
\nwould not result in any such increase in any cost to or reduction in any amount
\nreceivable by the LC Issuer; provided<\/u>, however<\/u>, that the LC Issuer
\nshall not be obligated to select an alternative Applicable Issuing Office if the
\nLC Issuer determines that (i) as a result of such selection the LC Issuer would
\nbe in violation of any applicable law, regulation, treaty, or guideline, or
\nwould incur additional costs or expenses or (ii) such selection would be
\ninadvisable for regulatory reasons or inconsistent with the interests of the LC
\nIssuer.<\/p>\n SECTION 2.08 Uniform Customs and Practice<\/u>. The Uniform Customs and
\nPractice for Documentary Credits as most recently published by the International
\nChamber of Commerce (“UCP<\/u>“) shall in all respects be deemed a part of
\nthis Article II as if incorporated herein and shall apply to the Letters of
\nCredit.<\/p>\n SECTION 2.09 Reductions in Facility Amount<\/u>. The Company shall have the
\nright, upon at least three Business Days153 notice to the LC Issuer, to reduce in
\nwhole or in part the Facility Amount, provided<\/u>, that<\/u>, each partial
\nreduction shall be in the aggregate amount of $10,000,000 or an integral
\nmultiple of $5,000,000 in excess thereof and no such reduction shall reduce the
\nFacility Amount below the then outstanding aggregate amount of all Letter of
\nCredit Liability.<\/p>\n SECTION 2.10 Existing Letters of Credit\/Deemed Letters of Credit<\/u>. (a)
\nExisting Letters of Credit<\/u>. There currently are outstanding certain Trade
\nLetters of Credit issued by the LC Issuer under the Existing Letter of Credit
\nAgreement the outstanding balance of each of which is set forth on Schedule II
\nhereto (as such Schedule may be modified between the date hereof and the fifth
\nBusiness Day after the Effective Date) (collectively, the “Existing Letters
\nof Credit<\/u>“). From and after the date hereof and upon fulfillment of the
\nconditions to initial Issuance specified in Section 4.01 hereof, each such
\nExisting Letter of Credit shall be deemed and treated<\/p>\n<\/p>\n 18<\/p>\n
\nfor all purposes hereof (including, without limitation, the calculation of
\nfees payable under Section 2.05 hereof, and calculating the usage of the
\nFacility Amount under Section 2.01 hereof) as a “Letter of Credit” hereunder,
\nany participation interest existing prior to the date hereof of the LC Issuer in
\nsuch Existing Letters of Credit shall, without further action on its part, be
\ndeemed extinguished in full and the LC Issuer, without further act on its part,
\nshall be deemed to have Issued each such Existing Letter of Credit as provided
\nin Section 2.01 hereof.<\/p>\n (b) Deemed Letters of Credit<\/u>. The Company may, not less than 30 days
\nprior to the date upon which the 364-Day Agreement will terminate (the
\n“364-Day Termination Date<\/u>“) deliver a notice to the LC Issuer (the
\n“Notice of Election<\/u>“), notifying the LC Issuer that the Company is
\nelecting to treat certain letters of credit issued under the 364-Day Agreement
\nas issued under this Agreement. On the 364-Day Termination Date, and upon
\nfulfillment of the conditions to Issuance set forth in Section 4.02 hereof, any
\nletter of credit issued pursuant to the terms of the 364-Day Agreement and
\nidentified by the Company not less than five days prior to the 364-Day
\nTermination Date in a written notice to the LC Issuer as being the subject of
\nthis Section 2.10(b) shall be deemed and treated for all purposes hereof
\n(including, without limitation, calculating the usage of the Facility Amount
\nunder Section 2.01 hereof) as a “Letter of Credit” hereunder and the LC Issuer,
\nwithout further act on its part, shall be deemed to have Issued each such letter
\nof credit as provided in Section 2.01 hereof; provided<\/u>, however, that the
\nLC Issuer shall not be obligated to, and shall not, treat any such letter of
\ncredit as having been Issued hereunder if, after giving effect to the deemed
\nIssuance of such Letter of Credit, the then outstanding aggregate amount of all
\nLetter of Credit Liability shall exceed the Facility Amount then in effect.<\/p>\n SECTION 2.11 Currency Provisions<\/u>.<\/p>\n (a) Equivalents<\/u>. For purposes of the provisions of Article II, (i) the
\nequivalent in Dollars of any Alternative Currency shall be determined by using
\nthe mean of the bid and offer quoted spot rates at which the LC Issuer153s
\nprincipal office in New York, New York offers to exchange Dollars for such
\nAlternative Currency in New York, New York at 11:00 A.M. (New York City time) on
\nthe Business Day on which such equivalent is to be determined and (ii) the
\nequivalent in any Alternative Currency of Dollars shall be determined by using
\nthe mean of the bid and offer quoted spot rates at which the LC Issuer153s
\nprincipal office in New York, New York offers to exchange such Alternative
\nCurrency for Dollars in New York, New York at 11:00 A.M. (New York City time) on
\nthe Business Day on which such equivalent is to be determined.<\/p>\n (b) Commitment<\/u>. For purposes of determining the unused portion of the
\nFacility Amount of the LC Issuer specified in Section 2.01 hereof, the
\nequivalent in Dollars of each Letter of Credit issued by the LC Issuer in an
\nAlternative Currency as determined on the date of the Issuance of such Letter of
\nCredit shall be the amount of the Facility Amount of the LC Issuer used in
\nconnection with the Issuance of such Letter of Credit. Further adjustments shall
\nbe made with respect to the unused portion of the Facility Amount of the LC
\nIssuer to Issue Letters of Credit based upon fluctuations thereafter in the
\nvalue of the Alternative Currency of such Letter of Credit as provided in
\nsubsection (c) below.<\/p>\n<\/p>\n 19<\/p>\n
\n(c) Mark to Market<\/u>. If, on any day, the equivalent in Dollars of the
\naggregate face amount of all Letters of Credit then outstanding exceeds the
\nFacility Amount then in effect, the Company shall, upon demand by the LC Issuer,
\nimmediately deposit with the LC Issuer, in Dollars, (i) the Dollar amount of
\nsuch excess plus (ii) a Dollar amount equal to the lesser of (A) $1,000,000 and
\n(B) 5% of the Dollar equivalent of all then existing Letter of Credit Liability
\nrelating to Letters of Credit denominated in Alternative Currencies, which
\namount shall be held by the LC Issuer as collateral for the Company153s and LC
\nSubsidiaries153 obligations with respect to outstanding Letters of Credit.<\/p>\n SECTION 2.12 Company Guaranty.<\/u><\/p>\n (a) Generally<\/u>. The LC Issuer may, from time to time, Issue Letters of
\nCredit for the account of each LC Subsidiary provided<\/u>, that<\/u>, the
\nreimbursement and other obligations of each such LC Subsidiary are and remain
\nunconditionally guaranteed by the Company pursuant to this Section 2.12.<\/p>\n (b) Guaranty<\/u>. The Company hereby unconditionally and irrevocably
\nguarantees the punctual payment when due, whether at stated maturity, by
\nacceleration or otherwise, of all obligations of the LC Subsidiaries now or
\nhereafter existing under this Agreement with respect to Letters of Credit issued
\nfor the account of any of the LC Subsidiaries, including any extensions,
\nmodifications, substitutions, amendments and renewals thereof, whether for
\nreimbursement obligations, interest, fees, expenses or otherwise (such
\nobligations being the “Subsidiary LC Obligations<\/u>“), and agrees to pay any
\nand all expenses (including reasonable counsel fees and expenses in accordance
\nwith Section 8.04 hereof) incurred by the LC Issuer in enforcing any rights
\nhereunder with respect to the Subsidiary LC Obligations. Without limiting the
\ngenerality of the foregoing, the Company153s liability shall extend to all amounts
\nwhich constitute part of the Subsidiary LC Obligations and would be owed by any
\nLC Subsidiary to the LC Issuer hereunder, or under the Letters of Credit issued
\nfor the account of an LC Subsidiary, but for the fact that they are
\nunenforceable or not allowable due to the existence of a bankruptcy,
\nreorganization or similar proceeding involving such LC Subsidiary.<\/p>\n (c) Guaranty Absolute<\/u>. The Company guarantees that the Subsidiary LC
\nObligations will be paid strictly in accordance with the terms hereof regardless
\nof any law, regulation or order now or hereafter in effect in any jurisdiction
\naffecting any of such terms or the rights of the LC Issuer with respect thereto.
\nThe obligations of the Company hereunder are independent of the Subsidiary LC
\nObligations and a separate action or actions may be brought and prosecuted
\nagainst the Company to enforce the guaranty contained in this Section 2.12,
\nirrespective of whether any action is brought against any LC Subsidiary or
\nwhether any LC Subsidiary is joined in any such action or actions. The liability
\nof the Company under the guaranty contained in this Section 2.12 shall be
\nabsolute and unconditional irrespective of:<\/p>\n (a) any lack of validity or enforceability of any of the Subsidiary LC
\nObligations or any agreement or instrument relating thereto against any LC
\nSubsidiary or any other Person;<\/p>\n<\/p>\n 20<\/p>\n
\n(b) any change in the time, manner or place of payment of, or in any other
\nterm of, all or any of the Subsidiary LC Obligations, or any other amendment or
\nwaiver of or any consent to departure herefrom with respect to Letters of Credit
\nissued for the account of an LC Subsidiary including, without limitation, any
\nincrease in the Subsidiary LC Obligations resulting from the Issuance of Letters
\nof Credit beyond the aggregate limitation specified in Section 2.01 hereof to
\nany and all LC Subsidiaries or otherwise;<\/p>\n (c) any taking, exchange, release or non-perfection of any collateral, or any
\ntaking, release or amendment or waiver of or consent to departure from any other
\nguaranty, for all or any of the Subsidiary LC Obligations;<\/p>\n (d) any manner of application of collateral, or proceeds thereof, to all or
\nany of the Subsidiary LC Obligations, or any manner of sale or other disposition
\nof any collateral for all or any of the Subsidiary LC Obligations or any other
\nassets of an LC Subsidiary;<\/p>\n (e) any change, restructuring or termination of the corporate structure or
\nexistence of an LC Subsidiary or any LC Subsidiary153s lack of corporate power or
\nauthority; or<\/p>\n (f) any other circumstance which might otherwise constitute a defense
\navailable to, or a discharge of, a third party guarantor.<\/p>\n The guaranty provided in this Section 2.12 shall continue to be effective or
\nbe reinstated, as the case may be, if at any time any payment of any of the
\nSubsidiary LC Obligations is rescinded or must otherwise be returned by the LC
\nIssuer upon the insolvency, bankruptcy or reorganization of an LC Subsidiary or
\notherwise, all as though such payment had not been made.<\/p>\n (d) Waivers<\/u>. The Company hereby waives, to the extent permitted by
\napplicable law:<\/p>\n (a) any requirement that the LC Issuer secure or insure any security interest
\nor lien or any property subject thereto or exhaust any right or take any action
\nagainst any LC Subsidiary or any other Person or any collateral;<\/p>\n (b) any defense arising by reason of any claim or defense based upon an
\nelection of remedies by the LC Issuer (including, without limitation, an
\nelection to nonjudicially foreclose on any real or personal property collateral)
\nwhich in any manner impairs, reduces, releases or otherwise adversely affects
\nits subrogation, reimbursement or contribution rights or other rights to proceed
\nagainst any LC Subsidiary or any other Person or any collateral;<\/p>\n<\/p>\n 21<\/p>\n
\n(c) any defense arising by reason of the failure of any LC Subsidiary to
\nproperly execute any letter of credit application and agreement or otherwise
\ncomply with applicable legal formalities;<\/p>\n (d) any defense or benefits that may be derived from California Civil Code \u00a7 \u00a7
\n2808, 2809, 2810, 2819, 2845 or 2850, or California Code of Civil Procedure \u00a7 \u00a7
\n580a, 580d or 726, or comparable provisions of the laws of any other
\njurisdiction and all other suretyship defenses it would otherwise have under the
\nlaws of California or any other jurisdiction;<\/p>\n (e) any duty on the part of the LC Issuer to disclose to the Company any
\nmatter, fact or thing relating to the business, operation or condition of any LC
\nSubsidiary and its respective assets now known or hereafter known by the LC
\nIssuer;<\/p>\n (f) all benefits of any statute of limitations affecting the Company153s
\nliability under or the enforcement of the guaranty provided in this Section 2.12
\nor any of the Subsidiary LC Obligations or any collateral;<\/p>\n (g) all setoffs and counterclaims;<\/p>\n (h) promptness, diligence, presentment, demand for performance and protest;\n<\/p>\n (i) notice of nonperformance, default, acceleration, protest or dishonor;\n<\/p>\n (j) except for any notice otherwise required by applicable laws that may not
\nbe effectively waived by the Company, notice of sale or other disposition of any
\ncollateral; and<\/p>\n (k) notice of acceptance of the guaranty provided in this Section 2.12 and of
\nthe existence, creation or incurring of new or additional Subsidiary LC
\nObligations.<\/p>\n SECTION 2.13 Dollar Payment Obligation<\/u>. Notwithstanding any other term
\nor provision hereof to the contrary, if the Company or any LC Subsidiary fails
\nto reimburse the LC Issuer for any payment made by the LC Issuer under a Letter
\nof Credit denominated in an Alternative Currency by the close of business on the
\nBusiness Day when due at the Payment Office specified for such reimbursement
\npayment, then the payment made by the LC Issuer in such Alternative Currency
\nshall be converted into Dollars (the “Dollar Payment Amount<\/u>“) by the LC
\nIssuer as provided for herein, and each of the Company and each LC Subsidiary
\nfor whose account such Letter of Credit was Issued agrees that it shall be
\nunconditionally obligated to, and shall immediately, reimburse the LC Issuer the
\nDollar Payment Amount at the LC Issuer153s then Payment Office for Dollars.<\/p>\n SECTION 2.14 Applications; Survival of Provisions<\/u>. This Agreement
\nshall control over any provision of any application and agreement for Letters of
\nCredit to the contrary, but additive or supplemental provisions of any such
\napplication and agreement shall apply to<\/p>\n<\/p>\n 22<\/p>\n
\neach Letter of Credit Issued pursuant to such application and agreement. The
\nprovisions in this Article shall survive the Termination Date in respect of all
\nLetters of Credit outstanding thereafter.<\/p>\n SECTION 2.15 Letters of Credit Outstanding on Termination Date<\/u>. On the
\nTermination Date, the Company or the LC Subsidiaries, as the case may be, in
\nrespect of all Letters of Credit then issued and outstanding shall either:<\/p>\n (a) Deposit into the LC Collateral Account held by the LC Issuer cash (in
\nDollars) in an amount equal to the undrawn amount of such Letters of Credit on
\nsuch date as security for the reimbursement of drawings thereunder which shall
\nbe used to reimburse the LC Issuer promptly upon a drawing under any such Letter
\nof Credit, with the respective portion thereof to be returned to the Company
\nwhen the respective Letter of Credit expires or is returned to the LC Issuer,
\nand in connection therewith the Company shall execute all documents reasonably
\nrequired by the LC Issuer; or<\/p>\n (b) Elect that such Letters of Credit be deemed issued pursuant to the terms
\nof the Revolving Credit Agreement or any other agreement under which letters of
\ncredit may be issued and the LC Issuer is an issuing bank (in each case to the
\nextent permitted by the terms of such agreement), following which election such
\nLetters of Credit shall be deemed terminated according to the provisions of this
\nAgreement and issued pursuant to the terms of the Revolving Credit Agreement or
\nsuch other letter of credit agreement, as the case may be; provided, that in
\neach case sufficient availability exists at such time under the terms of the
\nRevolving Credit Agreement or such other letter of credit agreement, as the case
\nmay be, to permit the relevant Letters of Credit to be deemed issued thereunder.\n<\/p>\n SECTION 2.16 LC Subsidiaries<\/u>. Any Subsidiary of the Company not an LC
\nSubsidiary on the date hereof may become an “LC Subsidiary” hereunder by
\ndelivering to the LC Issuer appropriate authorizations in respect of it entering
\ninto this Agreement, a letter of credit agreement supplement in substantially
\nthe form of Exhibit D hereto (each a “Letter of Credit Agreement
\nSupplement<\/u>“), wherein such Subsidiary agrees to be bound by all terms and
\nprovisions of this Agreement relating to Letters of Credit to be issued for the
\naccount of such Subsidiary and delivers a written consent of the Company
\nassenting to the inclusion of such Subsidiary as an “LC Subsidiary” hereunder,
\nprovided<\/u>, that<\/u>, no Subsidiary shall become an “LC Subsidiary”
\nuntil the LC Issuer shall have notified the Company in writing that such Letter
\nof Credit Agreement Supplement and consent are in form and substance
\nsatisfactory to the LC Issuer.<\/p>\n ARTICLE III <\/strong><\/p>\nPAYMENTS, TAXES, ETC. <\/strong><\/p>\nSECTION 3.01 Payments and Computations<\/u>. (a) Except as otherwise
\nprovided in Section 3.02 hereof, the Company and each LC Subsidiary, as the case
\nmay be, shall make each payment with respect to the Letters of Credit and the LC
\nIssuer free and clear of all claims, charges, offsets or deductions whatsoever
\nnot later than (i) if such payment relates to<\/p>\n<\/p>\n 23<\/p>\n
\nletter of credit facility fees or amounts (other than reimbursements for
\npayments in an Alternative Currency made under Letters of Credit) or if such
\npayment relates to a Letter of Credit denominated in Dollars, 1:00 P.M. (New
\nYork City time) on the day when due in Dollars to the LC Issuer at its address
\nreferred to in Section 8.02 hereof in same day funds and (ii) if such payment
\nrelates to reimbursement of a Letter of Credit denominated in an Alternative
\nCurrency, (A) in such Alternative Currency, at the LC Issuer153s Payment Office
\ntherefor so long as such payment is made by the close of business on the
\nBusiness Day when due and (B) thereafter in Dollars (at the then Dollar
\nequivalent of the amount due on such preceding Business Day), by 1:00 P.M. (New
\nYork City time) to the LC Issuer at its address referred to in Section 8.02
\nhereof in same day funds as provided in Section 2.13 above.<\/p>\n (b) The Company and each LC Subsidiary hereby authorize the LC Issuer, if and
\nto the extent payment owed to the LC Issuer is not paid when due hereunder to
\ncharge from time to time against any or all of the Company153s or such LC
\nSubsidiary153s accounts with the LC Issuer any amount so due (it being understood
\nand agreed that, notwithstanding anything in this Agreement or any of the other
\nLC Facility Documents to the contrary, accounts, deposits, sums, securities or
\nother property of any Foreign Subsidiary or of any Subsidiary of a Foreign
\nSubsidiary (including any Foreign Subsidiary or any Subsidiary of a Foreign
\nSubsidiary that is an LC Subsidiary) will not serve at any time, directly or
\nindirectly, to collateralize or otherwise offset the Obligations of the Company
\nor any Domestic Subsidiary, and, in addition, unless otherwise agreed to by the
\nCompany, the accounts, deposits, sums, securities or other property of a Foreign
\nSubsidiary or Subsidiary of a Foreign Subsidiary will only serve to
\ncollateralize or offset the Obligations of another Foreign Subsidiary or
\nSubsidiary of a Foreign Subsidiary that is an LC Subsidiary if such former
\nForeign Subsidiary or Subsidiary of a Foreign Subsidiary is owned by such latter
\nForeign Subsidiary or Subsidiary of a Foreign Subsidiary that is an LC
\nSubsidiary).<\/p>\n (c) All computations of interest based on the Base Rate and of letter of
\ncredit facility fees shall be made by the LC Issuer on the basis of a year of
\n365 or 366 days, as the case may be, in each case for the actual number of days
\n(including the first day but excluding the last day) occurring in the period for
\nwhich such interest or letter of credit facility fees are payable. Each
\ndetermination by the LC Issuer of an interest rate hereunder shall be conclusive
\nand binding for all purposes, absent manifest error.<\/p>\n (d) Whenever any payment hereunder shall be stated to be due on a day other
\nthan a Business Day, such payment shall be made on the next succeeding Business
\nDay, and such extension of time shall in such case be included in the
\ncomputation of payment of interest or letter of credit facility fee, as the case
\nmay be.<\/p>\n SECTION 3.02 Taxes<\/u>. (a) Any and all payments by the Company and each
\nLC Subsidiary hereunder shall be made free and clear of and without deduction
\nfor any and all present or future taxes, levies, imposts, deductions, charges or
\nwithholdings, and all liabilities with respect thereto, excluding<\/u> taxes
\nimposed on the overall net income of the LC Issuer, and franchise taxes imposed
\non the LC Issuer, by the jurisdiction under the laws of which the LC Issuer is
\norganized or any political subdivision thereof and taxes imposed on the overall
\nnet income of the LC Issuer, and franchise taxes imposed on the LC Issuer, by
\nthe jurisdiction of the<\/p>\n<\/p>\n 24<\/p>\n
\nLC Issuer153s Applicable Issuing Office or any political subdivision thereof
\n(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
\nand liabilities being hereinafter referred to as “Taxes<\/u>“). If the Company
\nor any LC Subsidiary shall be required by applicable Requirements of Law to
\ndeduct any Taxes from or in respect of any sum payable under any LC Facility
\nDocument to the LC Issuer, (i) the sum payable shall be increased as may be
\nnecessary so that after making all required deductions (including deductions
\napplicable to additional sums payable under this Section 3.02) the LC Issuer
\nreceives an amount equal to the sum it would have received had no such
\ndeductions been made, (ii) the Company or such LC Subsidiary shall make such
\ndeductions, (iii) the Company or respective LC Subsidiary shall pay the full
\namount deducted to the relevant taxation authority or other authority in
\naccordance with applicable Requirements of Law and (iv) as soon as practicable
\nafter the date of any payment of Taxes, the Company or respective LC Subsidiary
\nshall furnish to the LC Issuer, at its address referred to on the signature page
\nhereto, the original or a certified copy of a receipt evidencing payment
\nthereof, to the extent such a receipt is issued therefore, or other evidence of
\npayment thereof that is reasonably satisfactory to the LC Issuer.<\/p>\n (b) In addition, the Company 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, performance under or otherwise with respect to,
\nthis Agreement or the Letters of Credit (hereinafter referred to as “Other
\nTaxes<\/u>“).<\/p>\n (c) The Company or the respective LC Subsidiary will indemnify the LC Issuer
\nfor the full amount of Taxes and Other Taxes (including, without limitation, any
\nTaxes of any kind imposed or asserted by any jurisdiction on amounts payable
\nunder this Section 3.02) imposed on or paid by the LC Issuer and any liability
\n(including penalties, additions to tax, interest and expenses) arising therefrom
\nor with respect thereto, whether or not such Taxes or Other Taxes were correctly
\nor legally asserted. A reimbursement shall be made within 30 days from the date
\nthe LC Issuer makes written demand therefor. The LC Issuer shall give prompt
\n(within 10 Business Days) notice to the Company of the payment by the LC Issuer
\nof such amounts payable by the Company under the indemnity set forth in this
\nsubsection (c), and of the assertion by any governmental or taxing authority
\nthat such amounts are due and payable, but the failure to give such notice shall
\nnot affect the Company153s or any LC Subsidiary153s obligations hereunder to
\nreimburse the LC Issuer for such Taxes or Other Taxes or Taxes imposed or
\nasserted on amounts payable under this Section 3.02, except that neither the
\nCompany nor any LC Subsidiary shall be liable for penalties or interest accrued
\nor incurred from the commencement of such 10 Business Day period until 10
\nBusiness Days after it receives the notice contemplated above, after which time
\nit shall be liable for interest and penalties accrued or incurred prior to such
\n10 Business Day period and accrued or incurred beginning 10 Business Days after
\nsuch receipt. Neither the Company nor any LC Subsidiary shall be liable for any
\npenalties, interest, expense or other liability with respect to such Taxes or
\nOther Taxes after it has reimbursed the amount thereof to the LC Issuer.<\/p>\n (d) If the LC Issuer is organized under the laws of a jurisdiction outside
\nthe United States, on or prior to the date of its execution and delivery of this
\nAgreement and from time to time thereafter if requested in writing by the
\nCompany (but only so long as<\/p>\n<\/p>\n 25<\/p>\n
\nthe LC Issuer remains lawfully able to do so), it shall provide the Company
\nwith Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or any
\nsuccessor form prescribed by the Internal Revenue Service, certifying that the
\nLC Issuer 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 payable by the Company or certifying that the interest is effectively
\nconnected with the conduct of a trade or business in the United States.
\nSimilarly, with respect to each LC Subsidiary organized under the laws of a
\njurisdiction outside the United States, the LC Issuer, on or prior to the date
\nof its execution and delivery of this Agreement and from time to time thereafter
\nif requested in writing by the Company or such LC Subsidiary (but only so long
\nas the LC Issuer remains lawfully able to do so), shall provide the Company or
\nsuch LC Subsidiary with appropriate documentation certifying applicable
\nexemptions from withholding tax imposed by any jurisdiction on payments of
\ninterest payable by such LC Subsidiary. If the forms provided by the LC Issuer
\nat the time the LC Issuer first becomes a party to this Agreement indicate a
\nwithholding tax (including, without limitation, United States interest
\nwithholding) tax rate in excess of zero, withholding tax at such rate shall be
\nconsidered excluded from “Taxes” unless and until the LC Issuer provides the
\nappropriate forms certifying that a lesser rate applies, whereupon withholding
\ntax at such lesser rate only shall be considered excluded from Taxes for periods
\ngoverned by such forms; provided<\/u> however<\/u>, that, if at the date of
\nany assignment pursuant to Section 8.07 hereof, the LC Issuer assignor was
\nentitled to payments under subsection (a) of this Section 3.02 in respect of
\nwithholding tax with respect to interest paid at such date, then, to such
\nextent, the term Taxes shall include (in addition to withholding taxes that may
\nbe imposed in the future or other amounts otherwise includible in Taxes)
\nwithholding tax, if any, applicable with respect to the assignee on such date.\n<\/p>\n (e) For any period with respect to which the LC Issuer has failed to provide
\nthe Company or any LC Subsidiary with the appropriate form described in Section
\n3.02(d) hereof (other<\/u> than<\/u> if such failure is due to a change in
\nlaw occurring subsequent to the date on which a form originally was required to
\nbe provided, or if such form otherwise is not required under the first two
\nsentences of subsection (d) above), the LC Issuer shall not be entitled to
\nindemnification, and for purposes of clarification, neither the Company nor any
\nLC Subsidiary shall be required to increase any amounts payable to the LC Issuer
\nunder Sections 3.02(a) or 3.02(c) hereof with respect to Taxes or Other Taxes
\nimposed by any jurisdiction (including, without limitation, the United States);
\nprovided<\/u>, however<\/u>, that should the LC Issuer become subject to
\nTaxes or Other Taxes because of its failure to deliver a form required
\nhereunder, the Company shall take such steps as the LC Issuer shall reasonably
\nrequest to assist the LC Issuer to recover such Taxes or Other Taxes.<\/p>\n (f) Without affecting its rights under this Section 3.02 or any provision of
\nthis Agreement, the LC Issuer 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 the LC Issuer or its Applicable Issuing Office with respect to which the
\nCompany or any LC Subsidiary would be obligated pursuant to this Section 3.02 to
\nincrease any amounts payable to the LC Issuer or to pay any such Taxes or Other
\nTaxes, the LC Issuer shall use reasonable efforts to select an alternative
\nApplicable Issuing Office which would not result in the imposition of such Taxes
\nor Other Taxes; provided<\/u>, however<\/u>, that no LC Issuer shall be<\/p>\n<\/p>\n 26<\/p>\n
\nobligated to select an alternative Applicable Issuing Office if the LC Issuer
\ndetermines that as a result of such selection the LC Issuer would be in
\nviolation of an applicable law, regulation, or treaty, or would incur
\nunreasonable additional costs or expenses.<\/p>\n (g) In the event that an additional payment is made under this Section 3.02
\nfor the account of the LC Issuer and the LC Issuer, in its sole discretion,
\ndetermines that it has finally and irrevocably received or been granted a credit
\nagainst or release or remission for, or repayment of, any tax paid or payable by
\nit in respect of or calculated with reference to the deduction or withholding
\ngiving rise to such payment, the LC Issuer shall, to the extent that it
\ndetermines that it can do so without prejudice to the retention of the amount of
\nsuch credit, relief, remission or repayment, pay to the Company or LC
\nSubsidiary, as the case may be, such amount as the LC Issuer shall, in its sole
\ndiscretion, have determined to be attributable to such deduction or withholding
\nand which will leave the LC Issuer (after such payment) in no worse position
\nthan it would have been in if the Company or LC Subsidiary had not been required
\nto make such deduction or withholding. Nothing herein contained shall interfere
\nwith the right of the LC Issuer to arrange its tax affairs in whatever manner it
\nthinks fit nor oblige the LC Issuer to claim any tax credit or to disclose any
\ninformation relating to its tax affairs or any computations in respect thereof
\nor require the LC Issuer to do anything that would prejudice its ability to
\nbenefit from any other credits, reliefs, remissions or repayments to which it
\nmay be entitled.<\/p>\n (h) The LC Issuer agrees with the Company that it will take all reasonable
\nactions by all usual means (i) to secure and maintain the benefit of all
\nbenefits available to it under the provisions of any applicable double tax
\ntreaty concluded by the United States of America to which it may be entitled by
\nreason of the location of the LC Issuer153s Applicable Issuing Office or place of
\nincorporation or its status as an enterprise of any jurisdiction having any such
\napplicable double tax treaty, if such benefit would reduce the amount payable by
\nthe Company or any LC Subsidiary in accordance with this Section 3.02 and (ii)
\notherwise to cooperate with the Company to minimize the amount payable by the
\nCompany or any LC Subsidiary pursuant to this Section 3.02; provided<\/u>,
\nhowever<\/u>, that the LC Issuer shall not be obliged to disclose to the
\nCompany or any LC Subsidiary any information regarding its tax affairs or tax
\ncomputations nor to reorder its tax affairs or tax planning pursuant hereto.\n<\/p>\n (i) Without prejudice to the survival of any other agreement of the Company
\nor any LC Subsidiary hereunder, the agreements and obligations of the Company
\nand the LC Subsidiaries contained in this Section 3.02 shall survive the payment
\nin full of the Obligations.<\/p>\n<\/p>\n 27<\/p>\n
\nARTICLE IV <\/strong><\/p>\nCONDITIONS OF ISSUANCE <\/strong><\/p>\nSECTION 4.01 Conditions Precedent to Effectiveness of this Agreement<\/u>.
\nThis Agreement shall become effective on and as of the first date (the
\n“Effective Date<\/u>“) on which the following conditions precedent have been
\nsatisfied:<\/p>\n (a) All governmental and third party consents and approvals necessary in
\nconnection with the transactions contemplated hereby shall have been obtained
\n(without the imposition of any conditions that are not acceptable to the LC
\nIssuer) and shall remain in effect, and no law or regulation shall be applicable
\nin the reasonable judgment of the LC Issuer that restrains, prevents or imposes
\nmaterially adverse conditions upon the transactions contemplated hereby.<\/p>\n (b) The LC Issuer shall have received the following in form and substance
\nsatisfactory to the LC Issuer:<\/p>\n (a) Certified copies of the resolutions of the board of directors (or persons
\nperforming similar functions) of the Company approving the Agreement and each of
\nthe LC Facility Documents to which it is or is to be a party, and of all
\ndocuments evidencing other necessary Governmental Authorizations, or other
\nnecessary consents, approvals, authorizations, notices, filings or actions, with
\nrespect to this Agreement and any of the LC Facility Documents to which it is or
\nis to be a party.<\/p>\n (b) A copy of a certificate of the Secretary of State (or equivalent
\nGovernmental Authority) of the jurisdiction of organization of each domestic
\nAccount Party listing the certificate or articles of incorporation (or similar
\nConstitutive Document) of each such Account Party and each amendment thereto on
\nfile in the office of such Secretary of State (or such governmental authority)
\nand certifying (A) that such amendments are the only amendments to such Person153s
\ncertificate or articles of incorporation (or similar constitutive document) on
\nfile in its office, (B) if customarily available in such jurisdiction, that such
\nPerson has paid all franchise taxes (or the equivalent thereof) to the date of
\nsuch certificate and (C) that such Person is duly organized and is in good
\nstanding under the laws of the jurisdiction of its organization.<\/p>\n (c) A certificate of the Secretary or an Assistant Secretary of each domestic
\nAccount Party certifying the names and true signatures of the officers of such
\nAccount Party authorized to sign each LC Facility Document to which it is a
\nparty and the other documents to be delivered hereunder.<\/p>\n (d) A favorable opinion of General Counsel or Associate General Counsel to
\nthe Account Parties, substantially in the form of Exhibit A-1 hereto and as to
\nsuch other matters as the LC Issuer may reasonably request.<\/p>\n (e) A favorable opinion of Orrick, Herrington & Sutcliffe LLP, special
\nNew York counsel to the Account Parties, in substantially the form of Exhibit
\nA-2 hereto and as to such other matters as the LC Issuer may reasonably request.\n<\/p>\n (f) Such other approvals, opinions or documents as the LC Issuer may
\nreasonably request.<\/p>\n (g) Evidence that the 364-Day Agreement and each of the Other LC Facilities
\nhas been entered into and all conditions precedent to the effectiveness of<\/p>\n<\/p>\n 28<\/p>\n
\nthe 364-Day Agreement and each of the Other LC Facilities (except the entry
\ninto and effectiveness of this Agreement) have been satisfied or waived.<\/p>\n (h) Evidence that the security interests granted to each of Bank of America,
\nN.A., HSBC Bank, National Association and JPMorgan Chase Bank in respect of
\nthose certain letter of credit agreements between each of such parties and the
\nCompany and dated as of June 25, 2003 have been terminated and all liens
\nthereunder have been released.<\/p>\n (c) The Company shall have paid all accrued fees and expenses of the LC
\nIssuer in connection with this Agreement.<\/p>\n (d) All amounts owing by the Company or any of its Subsidiaries to the
\nlenders and agents under the Existing Letter of Credit Agreement shall have
\nbeen, paid in full, and all commitments of the lenders under the Existing Letter
\nof Credit Agreement (except for the letters of credit issued thereunder which
\nare to be deemed issued under this Agreement or the 364- Day Agreement) shall
\nhave been, or concurrently with the initial extension of credit made on the
\nEffective Date shall be, terminated in accordance with the terms of the Existing
\nLetter of Credit Agreement and all guarantees given, and security interests
\ngranted, in connection therewith shall have been terminated.<\/p>\n SECTION 4.02 Conditions Precedent to Each Issuance<\/u>. The obligation of
\nthe LC Issuer to Issue each Letter of Credit (including the initial Letter of
\nCredit) shall be subject to the further conditions precedent that on the date of
\nsuch Issuance the following statements shall be true (and each request for
\nIssuance by the Company or an LC Subsidiary shall constitute a representation
\nand warranty by the Company or such LC Subsidiary that on the date of such
\nIssuance such statements are true):<\/p>\n (a) The representations and warranties contained in Section 5.01 hereof
\n(except the representations and warranties contained in Sections 5.01(f) and
\n5.01(g) hereof) are true and correct in all material respects on and as of the
\ndate of such Issuance, before and after giving effect to such Issuance, and to
\nthe application of the proceeds therefrom, as though made on and as of such
\ndate, except to the extent that any such representation or warranty is stated to
\nrelate to an earlier date, in which case such representation or warranty shall
\nbe true and correct in all material respects on and as of such earlier date;\n<\/p>\n (b) No event has occurred and is continuing, or would result from such
\nIssuance or from the application of the proceeds therefrom or from such
\nIssuance, which constitutes an Event of Default or Default; and<\/p>\n (c) The Issuance of such Letter of Credit will be in compliance with the
\ncriteria set forth in Section 2.01(a) and (b) and Section 2.10(b) hereof, as the
\ncase may be.<\/p>\n<\/p>\n 29<\/p>\n
\nARTICLE V <\/strong><\/p>\nREPRESENTATIONS AND WARRANTIES <\/strong><\/p>\nSECTION 5.01 Representations and Warranties of the Company<\/u>. The
\nCompany represents and warrants as follows:<\/p>\n (a) The Company is a corporation duly organized, validly existing and in good
\nstanding under the laws of Delaware; each LC Subsidiary is duly organized or
\nformed, validly existing and in good standing under the laws of its jurisdiction
\nof incorporation or organization. The Company and each of its Subsidiaries
\npossess all powers (corporate or otherwise) and all other authorizations and
\nlicenses necessary to engage in their respective businesses, except where the
\nfailure to so possess would not have a Material Adverse Effect.<\/p>\n (b) The execution, delivery and performance by each Account Party of the LC
\nFacility Documents to which it is a party and the consummation of the
\ntransactions contemplated thereby are within such Account Party153s respective
\npowers (corporate or otherwise), have been duly authorized by all necessary
\naction (corporate or otherwise), and do not (i) contravene such Account Party153s
\nConstitutive Documents, (ii) violate any Requirements of Law, (iii) conflict
\nwith or result in the breach of, or constitute a default or require any payment
\nto be made under, any material contract, loan agreement, indenture, mortgage,
\ndeed of trust, lease or other material instrument binding on or affecting any
\nAccount Party or any of its properties or (iv) except for the Liens created
\nunder the LC Facility Documents, result in or require the creation or imposition
\nof any Lien upon or with respect to any of the properties of any Account Party.
\nNo Account Party is in violation of any such Requirements of Law or in breach of
\nany such contract, loan agreement, indenture, mortgage, deed of trust, lease or
\nother instrument, the violation or breach of which would be reasonably likely to
\nhave a Material Adverse Effect.<\/p>\n (c) No authorization or approval or other action by, and no notice to or
\nfiling with, any governmental authority or regulatory body is required for the
\ndue execution, delivery and performance by any Account Party of the LC Facility
\nDocuments to which it is a party.<\/p>\n (d) Each LC Facility Document is the legal, valid and binding obligation of
\nthe Account Party thereto enforceable against such Account Party in accordance
\nwith its terms, except as limited by bankruptcy, insolvency or other laws of
\ngeneral application relating to or affecting the enforcement of creditors153
\nrights generally and general principles of equity (regardless of whether
\nconsidered in a proceeding in equity or at law).<\/p>\n (e) The Consolidated balance sheets of the Company and its Subsidiaries as of
\nJanuary 29, 2005, and the related Consolidated statements of income and retained
\nearnings of the Company and its Subsidiaries for the Fiscal Year then ended,
\ncertified by Deloitte & Touche LLP or other independent public accountants
\nreasonably acceptable to<\/p>\n<\/p>\n 30<\/p>\n
\nthe LC Issuer, copies of which have been furnished to the LC Issuer, when
\ntaken as a whole fairly present the Consolidated financial condition of the
\nCompany and its Subsidiaries as at such date and the results of the operations
\nof the Company and its Subsidiaries for the period ended on such date, all in
\naccordance with GAAP.<\/p>\n (f) Since January 29, 2005, there has been no Material Adverse Change.<\/p>\n (g) There is no pending or, to the Company153s knowledge, threatened action or
\nproceeding affecting the Company or any of its Subsidiaries before any court,
\ngovernmental agency or arbitrator, (i) which is reasonably likely to be
\nadversely determined and if adversely determined would have a Material Adverse
\nEffect or (ii) which purports to affect the legality, validity or enforceability
\nof any LC Facility Document.<\/p>\n (h) The Company is not engaged in the business of extending credit for the
\npurpose of purchasing or carrying Margin Stock.<\/p>\n (i) Neither the Company nor any of its Subsidiaries is an “investment
\ncompany,” or an “affiliated person” of, or “promoter” or “principal underwriter”
\nfor, an “investment company,” as such terms are defined in the Investment
\nCompany Act of 1940, as amended.<\/p>\n (j) Set forth on Schedule IV hereto is a complete and accurate list, as of
\nthe date hereof, of all Plans of the Company and its Subsidiaries. Neither the
\nCompany nor any ERISA Affiliate is a party or subject to, or has any obligation
\nto make payments, or incur any material Withdrawal Liability, to, any
\nMultiemployer Plan.<\/p>\n (k) Except as provided in Schedule V, no ERISA Event has occurred with
\nrespect to any Plan that, when taken together with all other such ERISA Events
\nfor which liability is reasonably expected to occur would reasonably be likely
\nto result in a Material Adverse Effect.<\/p>\n (l) Except as provided in Schedule V, Schedule B (Actuarial Information) to
\nthe most recently completed annual report (Form 5500 Series) for each Plan of
\nthe Company or its Subsidiaries, copies of which have been or will be filed with
\nthe Internal Revenue Service, is complete and accurate in all material respects
\nand fairly presents the funding status of such Plan, and since the date of such
\nSchedule B there has been no material adverse change in such funding status
\nwhich would reasonably be likely to result in a Material Adverse Effect.<\/p>\n (m) Except as provided in Schedule V, neither the Company nor any ERISA
\nAffiliate has been notified by the sponsor of a Multiemployer Plan that such
\nMultiemployer Plan is in reorganization or has been terminated, within the
\nmeaning of Title IV of ERISA and no Multiemployer Plan is reasonably expected to
\nbe in reorganization or to be terminated, within the meaning of Title IV of
\nERISA.<\/p>\n (n) Each of the Company and its Subsidiaries is in compliance with all
\nRequirements of Law (including, without limitation, all applicable Environmental
\nLaws)<\/p>\n<\/p>\n 31<\/p>\n
\napplicable to their respective properties, assets and business other than (i)
\nwhere the failure to so comply would (as to all such failures to comply in the
\naggregate) not have a Material Adverse Effect or (ii) as described on Schedule
\nVI.<\/p>\n (o) As of the Effective Date, no information, exhibit or report furnished by
\nany Account Party to the LC Issuer in connection with the negotiation of the LC
\nFacility Documents or pursuant to the terms of the LC Facility Documents
\ncontained any untrue statement of a material fact or omitted to state a material
\nfact necessary to make the statements made therein not misleading; provided that
\nall financial projections, if any, that have been or will be prepared by the
\nCompany and made available to the LC Issuer have been or will be prepared in
\ngood faith based upon reasonable assumptions, it being understood by the LC
\nIssuer and all the other parties hereto that such projections are subject to
\nsignificant uncertainties and contingencies, many of which are beyond the
\nCompany153s control, and that no assurances can be given that the projections will
\nbe realized.<\/p>\n ARTICLE VI <\/strong><\/p>\nCOVENANTS OF THE COMPANY <\/strong><\/p>\nSECTION 6.01 Affirmative Covenants<\/u>. The Company will, unless the LC
\nIssuer shall otherwise consent in writing:<\/p>\n (a) Preservation of Existence, Etc<\/u>. Preserve and maintain, and cause
\neach of its Subsidiaries to preserve and maintain, its existence (corporate or
\notherwise), rights (charter and statutory), and franchises except if, in the
\nreasonable business judgment of the Company or such LC Subsidiary, as the case
\nmay be, it is in its best economic interest not to preserve and maintain such
\nrights or franchises and such failure to preserve and maintain such rights or
\nfranchises would not materially adversely affect the rights of the LC Issuer
\nhereunder or the ability of the Company or any of the LC Subsidiaries to perform
\nits obligations under the respective LC Facility Documents (it being understood
\nthat the foregoing shall not prohibit, or be violated as a result of, any
\ntransactions by or involving the Company or any of the LC Subsidiaries otherwise
\npermitted under Section 6.02).<\/p>\n (b) Compliance with Laws, Etc<\/u>. Comply, and cause each of its
\nSubsidiaries to comply, in all material respects with all applicable laws
\n(including, without limitation, ERISA and all Environmental Laws), rules,
\nregulations and orders, such compliance to include, without limitation, paying
\nbefore the same become delinquent all taxes, assessments and governmental
\ncharges imposed upon it or upon its property except to the extent contested in
\ngood faith or where the failure to comply would not have a Material Adverse
\nEffect.<\/p>\n (c) Visitation Rights<\/u>. Permit, and cause each of the LC Subsidiaries
\nto permit, the LC Issuer, or any agents or representatives thereof, from time to
\ntime, during normal business hours, and upon reasonable prior notice, to examine
\nand make copies of and abstracts from its records and books of account, to visit
\nits properties, and to discuss the affairs, finances and accounts of the Company
\nand the LC Subsidiaries with any of their respective directors, officers or
\nagents.<\/p>\n<\/p>\n 32<\/p>\n
\n(d) Maintenance of Books and Records<\/u>. Keep, and cause each of the LC
\nSubsidiaries to keep, proper books of record and account, in which full and
\ncorrect entries shall be made of all financial transactions and the assets and
\nbusiness of the Company and each of the LC Subsidiaries in accordance with sound
\nbusiness practice.<\/p>\n (e) Maintenance of Properties, Etc<\/u>. Maintain and preserve, and cause
\neach of its Subsidiaries to maintain and preserve, all of its properties which
\nare used or useful in the conduct of its business in good working order and
\ncondition, ordinary wear and tear excepted, consistent with sound business
\npractice, except where the failure to so maintain and preserve would not have a
\nMaterial Adverse Effect.<\/p>\n (f) Maintenance of Insurance<\/u>. Maintain, and cause each of the LC
\nSubsidiaries to maintain, insurance (other than earthquake or terrorism
\ninsurance) in amounts, from responsible and reputable insurance companies or
\nassociations, with limitations, of types and on terms as is customary for the
\nindustry; provided<\/u>, that<\/u>, the Company and each of the LC
\nSubsidiaries may self-insure risks and liabilities in accordance with its
\npractice as of the date hereof and may in addition self-insure risks and
\nliabilities in amounts as are customarily self-insured by similarly situated
\nPersons in the industry.<\/p>\n (g) Use of Proceeds<\/u>. Use the issuances of Trade Letters of Credit
\nsolely for general corporate purposes of the Company and the LC Subsidiaries.\n<\/p>\n (h) Post-Closing Actions<\/u>. Within 90 days following the Effective Date,
\ndeliver certified copies of the resolutions of the board of directors (or
\npersons performing similar functions) of each Account Party (other than the
\nCompany) approving the Agreement and each of the LC Facility Documents to which
\nit is or is to be a party and ratifying the execution of each of the LC Facility
\nDocuments, together with legal opinions delivered by legal counsel to each such
\nAccount Party, in form and substance satisfactory to the LC Issuer.<\/p>\n SECTION 6.02 Negative Covenants<\/u>. The Company will not, without the
\nwritten consent of the LC Issuer:<\/p>\n (a) Liens, Etc<\/u>. Create or suffer to exist, or permit any of its
\nSubsidiaries to create or suffer to exist, any Lien (including an assignment of
\nany right to receive income), other than:<\/p>\n (a) Permitted Liens;<\/p>\n (b) Liens securing Debt in an aggregate outstanding principal amount, or
\nsecuring exposure under Hedge Agreements, when aggregated (without duplication)
\nwith the outstanding principal amount of all Debt incurred under Section
\n6.02(b)(viii), not in excess at any time of 7.5% of the Consolidated Tangible
\nNet Worth at the end of the immediately preceding Fiscal Quarter;<\/p>\n<\/p>\n 33<\/p>\n
\n(c) Liens upon or in any real property, equipment, fixed asset or capital
\nasset acquired, constructed, improved or held by the Company or any Subsidiary
\nin the ordinary course of business to secure the cost of acquiring, constructing
\nor improving such property, equipment or asset or to secure Debt incurred solely
\nfor the purpose of financing the acquisition of such property, equipment or
\nasset, or Liens existing on such property, equipment or asset at the time of its
\nacquisition (other than any such Liens created in contemplation of such
\nacquisition, construction or improvement that were not incurred to finance the
\nacquisition, construction or improvement of such property, equipment or asset)
\nor extensions, renewals or replacements of any of the foregoing for the same or
\na lesser amount, provided<\/u>, however<\/u>, that no such Lien shall extend
\nto or cover any properties of any character other than the real property,
\nequipment or asset being acquired, constructed or improved, and no such
\nextension, renewal or replacement shall extend to or cover any properties not
\ntheretofore subject to the Lien being extended, renewed or replaced;<\/p>\n (d) Liens upon existing real property interests of the Company or any of its
\nSubsidiaries to secure Debt in an aggregate principal amount not in excess of
\n$600,000,000; and<\/p>\n (e) Liens existing on property prior to the acquisition thereof by the
\nCompany or any of its Subsidiaries in the ordinary course of business or on
\nproperty of a Person existing at the time such Person is merged into or
\nconsolidated with the Company or any Subsidiary of the Company or becomes a
\nSubsidiary of the Company; provided<\/u> that such Liens were not created in
\ncontemplation of such merger, consolidation or acquisition and do not extend to
\nany other assets of the Company or such Subsidiary, and the replacement,
\nextension or renewal of any such Lien upon or in the same property subject
\nthereto or the replacement, extension or renewal (without increase in the
\namount, shortening the maturity or change in any direct or contingent obligor if
\nsuch change would be adverse to the Company) of the Debt permitted hereunder
\nsecured thereby.<\/p>\n (b) Subsidiary Debt<\/u>. Permit any of its Subsidiaries to create, incur,
\nassume or suffer to exist, any Debt, except:<\/p>\n (a) Debt under (A) this Agreement, (B) the 364-Day Agreement, (C) the Other
\nLC Facilities, and (D) the Revolving Credit Agreement;<\/p>\n (b) Debt incurred after the date of this Agreement and secured by Liens
\nexpressly permitted under Section 6.02(a)(iii) hereof in an aggregate principal
\namount not to exceed, when aggregated with the principal amount of all Debt
\nincurred under clause (iii) of this Section 6.02(b), $100,000,000 at any time
\noutstanding;<\/p>\n (c) Capital Leases incurred after the date of this Agreement which, when the
\nprincipal amount thereof is aggregated with the principal amount of all Debt
\nincurred under clause (ii) of this Section 6.02(b), do not exceed $100,000,000
\nat any time outstanding;<\/p>\n<\/p>\n 34<\/p>\n
\n(d) Debt referred to in Section 6.02(a)(iv) in a principal amount not in
\nexcess of the amount referred to therein;<\/p>\n (e) Debt existing on the Effective Date and described on Schedule VII
\n(“Existing Debt<\/u>“), and any Debt extending the maturity of, or refunding,
\nrefinancing or replacing, in whole or in part, the Existing Debt;
\nprovided<\/u>, that<\/u> (A) the aggregate principal amount of such
\nextended, refunding, refinancing or replacement Debt shall not be increased
\nabove the principal amount of the Existing Debt and the premium, if any, thereon
\noutstanding immediately prior to such extension, refunding, refinancing or
\nreplacement and (B) the direct and contingent obligors of the Existing Debt
\nshall not be changed as a result of or in connection with such extension,
\nrefunding, refinancing or replacement if such change would be adverse to the
\ninterests of the Company;<\/p>\n (f) Debt owed to the Company or to any Subsidiary of the Company;<\/p>\n (g) Debt not otherwise permitted under this Section 6.02(b) in an outstanding
\nprincipal aggregate amount, when aggregated (without duplication) with the
\noutstanding principal amount of all Debt secured by Liens permitted under
\nSection 6.02(a)(ii), not in excess at any time of 7.5% of the Consolidated
\nTangible Net Worth at the end of the immediately preceding Fiscal Quarter;<\/p>\n (h) Obligations of a Subsidiary of the Company under direct or indirect
\nguaranties in respect of, or obligations (contingent or otherwise) to purchase
\nor acquire, or otherwise to assure a creditor against loss in respect of, Debt
\nof another Subsidiary of the Company permitted under clauses (i) through (viii)
\nof this Section 6.02(b); and<\/p>\n (i) Endorsement of negotiable instruments for deposit or collection or
\nsimilar transactions in the ordinary course of business.<\/p>\n (c) Investments<\/u>. Make, or permit any of its Subsidiaries to make, an
\ninvestment in any Person that is not a Loan Party or a Subsidiary of a Loan
\nParty by way of the purchase of such Person153s capital stock or securities or the
\nmaking of capital contributions with respect thereto (an “Investment<\/u>“)
\nunless, on the date of and after giving pro forma effect to such investment, the
\nCompany would be in compliance with the financial covenants set forth in Section
\n6.03.<\/p>\n (d) Mergers, Etc<\/u>. Merge or consolidate with or into any Person, or
\npermit any of its Subsidiaries to do so, except<\/u> (i) any Subsidiary of the
\nCompany may merge or consolidate with or into the Company or any Subsidiary of
\nthe Company, (ii) the Company may merge with any other Person so long as the
\nCompany is the surviving corporation and (iii) in connection with any
\ntransaction permitted by Section 6.02(c) or (e).<\/p>\n<\/p>\n 35<\/p>\n
\n(e) Sale of Assets<\/u>. Sell, lease, transfer or otherwise dispose of, or
\npermit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of,
\nany assets, or grant any option or other right to purchase, lease or otherwise
\nacquire any assets, in each case to any Person that is not a Loan Party or a
\nSubsidiary of a Loan Party, except (i) sales of inventory in the ordinary course
\nof its business; (ii) the Company and its Subsidiaries may, directly or
\nindirectly through the Company or one or more of its Subsidiaries, sell, lease,
\ntransfer or otherwise dispose of any obsolete, damaged or worn-out property or
\nany other property that is otherwise no longer useful in the conduct of their
\nbusiness; (iii) the Company and its Subsidiaries may sell real property
\ninterests as part of one or more sale leaseback transactions provided that the
\nvalue of such real property interests shall not be in excess of $600,000,000
\nless, without duplication, the amount of Debt incurred as contemplated by
\nSection 6.02(a)(iv) hereof; (iv) the Company and its Subsidiaries may sell cash
\nequivalents and other similar instruments in which it has invested from time to
\ntime; and (v) the Company and its Subsidiaries may sell, lease, transfer or
\notherwise dispose of property and assets so long as the aggregate fair market
\nvalue of all such property and assets sold, leased, transferred or otherwise
\ndisposed of pursuant to this clause (v) from the Effective Date to the date of
\ndetermination does not exceed 25% of the Consolidated Total Assets.<\/p>\n (f) Change in Nature of Business<\/u>. Make any material change in the
\nnature of the business of the Company and its Subsidiaries as conducted as of
\nthe date hereof.<\/p>\n SECTION 6.03 Financial Covenants<\/u>. So long as any Letter of Credit
\nshall be outstanding or the LC Issuer shall have any Commitment hereunder, the
\nCompany will, unless it has the written consent of the LC Issuer to do
\notherwise:<\/p>\n (a) Leverage Ratio<\/u>. Maintain a Leverage Ratio as of the last day of
\neach Fiscal Quarter, determined on the basis of the most recently completed four
\nconsecutive Fiscal Quarters ending on such day, of not greater than 2.25:1.00.\n<\/p>\n (b) Fixed Charge Coverage Ratio<\/u>. Maintain a Fixed Charge Coverage
\nRatio as of the last day of each Fiscal Quarter, determined on the basis of the
\nmost recently completed four consecutive Fiscal Quarters ending on such day, of
\nnot less than 2.00:1.00.<\/p>\n SECTION 6.04 Reporting Requirements<\/u>. The Company will furnish to the
\nLC Issuer:<\/p>\n (a) As soon as available and in any event within 45 days after the end of
\neach of the first three Fiscal Quarters, Consolidated balance sheets of the
\nCompany and its Subsidiaries as of the end of such Fiscal Quarters and
\nConsolidated statements of income and retained earnings of the Company and its
\nSubsidiaries for the period commencing at the end of the previous Fiscal Year
\nand ending with the end of such Fiscal Quarter, certified by the chief financial
\nofficer or treasurer of the Company and accompanied by a certificate of said
\nofficer stating that such have been prepared in accordance with GAAP.<\/p>\n<\/p>\n 36<\/p>\n
\n(b) As soon as available and in any event within 90 days after the end of
\neach Fiscal Year, a copy of the annual report for such year for the Company and
\nits Subsidiaries, containing Consolidated financial statements of the Company
\nand its Subsidiaries for such Fiscal Year certified by Deloitte & Touche LLP
\nor other independent public accountants reasonably acceptable to the LC Issuer.\n<\/p>\n (c) Together with the financial statements required by Sections 6.04(a) and
\n(b), a compliance certificate, in substantially the form of Exhibit B hereto,
\nsigned by the chief financial officer or treasurer of the Company stating (i)
\nwhether or not he or she has knowledge of the occurrence of any Event of Default
\nor Default and, if so, stating in reasonable detail the facts with respect
\nthereto and (ii) whether or not the Company is in compliance with the
\nrequirements set forth in Section 6.03 and showing the computations used in
\ndetermining such compliance or non-compliance.<\/p>\n (d) As soon as possible and in any event within five days after a Responsible
\nOfficer becomes aware of each Event of Default and Default, a statement of a
\nResponsible Officer of the Company setting forth details of such Event of
\nDefault or Default and the action which the Company has taken and proposes to
\ntake with respect thereto.<\/p>\n (e) Promptly after the sending or filing thereof, copies of all reports which
\nthe Company sends to any of its security holders, and copies of all reports and
\nregistration statements which the Company or any Subsidiary files with the
\nSecurities and Exchange Commission (the “SEC<\/u>“) or any national securities
\nexchange.<\/p>\n (f) Promptly after the filing or receiving thereof, copies of all reports and
\nnotices which the Company or any Subsidiary files under ERISA with the Internal
\nRevenue Service or the Pension Benefit Guaranty Corporation or the U.S.
\nDepartment of Labor or which the Company or any Subsidiary receives from such
\nentities other than immaterial regular periodic notices and reports and notices
\nand reports of general circulation.<\/p>\n (g) Within 120 days after the end of each Fiscal Year, a summary, prepared by
\na Responsible Officer of the Company, of the Company153s (and its Subsidiaries153)
\nmajor insurance coverages (and the amount of self-insurance) then in effect.\n<\/p>\n (h) Such other information respecting the condition or operations, financial
\nor otherwise, of the Company or any of its Subsidiaries as the LC Issuer may
\nfrom time to time reasonably request.<\/p>\n Notwithstanding the foregoing, the financial statements required to be
\ndelivered by the Company pursuant to Sections 6.04(a) and (b) and the reports
\nand statements required to be delivered by the Company pursuant to Section
\n6.04(e) shall be deemed to have been delivered (i) on the date on which the
\nCompany posts reports containing such financial statements or other materials on
\nthe Company153s website on the internet at “www.gapinc.com” (or any successor page
\nnotified to the LC Issuer) or (ii) when such reports containing such financial
\nstatements or other materials are posted on the SEC153s website on the internet at
\n“www.sec.gov”.<\/p>\n<\/p>\n 37<\/p>\n
\nARTICLE VII <\/strong><\/p>\nEVENTS OF DEFAULT <\/strong><\/p>\nSECTION 7.01 Events of Default<\/u>. If any of the following events
\n(“Events of Default<\/u>“) shall occur and be continuing:<\/p>\n (a) Any Account Party shall fail to pay any reimbursement obligation under
\nany Letter of Credit when the same becomes due and payable; or shall fail to pay
\nany interest payable with respect to any Letter of Credit, or any fees or any
\nother amounts hereunder within five days after the same become due and payable
\nby it; or<\/p>\n (b) Any representation or warranty made by any Account Party in any LC
\nFacility Document (whether made on behalf of itself or otherwise) or by any
\nAccount Party (or any of its officers) in connection with any LC Facility
\nDocument shall prove to have been incorrect in any material respect when made;
\nor<\/p>\n (c) Any Account Party shall fail to perform or observe (i) any covenant or
\nagreement contained in Section 6.02 or 6.03 hereof; or (ii) such other term,
\ncovenant or agreement contained in any LC Facility Document on its part to be
\nperformed or observed if the failure to perform or observe such other term,
\ncovenant or agreement shall remain unremedied for 30 days after written notice
\nthereof shall have been given to such Account Party by the LC Issuer; or<\/p>\n (d) The Company or any of its LC Subsidiaries shall fail to pay any principal
\nof or premium or interest on any Debt which is outstanding in a principal amount
\nof at least $50,000,000 in the aggregate (but excluding Debt hereunder) of the
\nCompany or such LC Subsidiary when the same becomes due and payable (whether by
\nscheduled maturity, required prepayment, acceleration, demand or otherwise), and
\nsuch failure shall continue after the applicable grace period, if any, specified
\nin the agreement or instrument relating to such Debt; or any such Debt shall be
\ndeclared to be due and payable, or required to be prepaid (other than by a
\nregularly scheduled required prepayment), redeemed, purchased or defeased, or an
\noffer to prepay, redeem, purchase or defease such Debt shall be required to be
\nmade, in each case as a result of a default thereunder and prior to the stated
\nmaturity thereof; or<\/p>\n (e) The Company or any of the Material LC Subsidiaries shall generally not
\npay its debts as such debts become due, or shall admit in writing its inability
\nto pay its debts generally, or shall make a general assignment for the benefit
\nof creditors; or any proceeding shall be instituted by or against the Company or
\nany of the Material LC Subsidiaries seeking to adjudicate it a bankrupt or
\ninsolvent, or seeking liquidation, winding up, reorganization, arrangement,
\nadjustment, protection, relief, or composition of it or its debts under any law
\nrelating to bankruptcy, insolvency or reorganization or relief of debtors, or
\nseeking the entry of an order for relief or the appointment of a receiver,
\ntrustee, custodian or other similar official for it or for any substantial part
\nof its property and, in the case of any such proceeding instituted against it
\n(but not instituted by it), either such proceeding shall remain undismissed or
\nunstayed for a period of 60 days, or<\/p>\n<\/p>\n 38<\/p>\n
\nany of the actions sought in such proceeding (including, without limitation,
\nthe entry of an order for relief against, or the appointment of a receiver,
\ntrustee, custodian or other similar official for, it or for any substantial part
\nof its property) shall occur; or the Company or any of the Material LC
\nSubsidiaries shall take any corporate action to authorize any of the actions set
\nforth above in this subsection (e); or<\/p>\n (f) One or more judgments or orders for the payment of money in excess of
\n$50,000,000 in the aggregate shall be rendered against the Company or any of the
\nLC Subsidiaries and either (i) enforcement proceedings shall have been commenced
\nby any creditor upon such judgment or order or (ii) there shall be any period of
\nforty-five (45) consecutive days during which a stay of enforcement of such
\njudgment or order, by reason of a pending appeal or otherwise, shall not be in
\neffect; provided<\/u>, however<\/u>, that any such judgment or order shall
\nnot give rise to an Event of Default under this Section 7.01(f) if and so long
\nas (A) the amount of such judgment or order which remains unsatisfied is covered
\nby a valid and binding policy of insurance between the respective Account Party
\nand the insurer covering full payment of such unsatisfied amount and (B) such
\ninsurer has been notified, and has not disputed the claim made for payment, of
\nthe amount of such judgment or order; or<\/p>\n (g) A Change of Control shall have occurred; or<\/p>\n (h) Any material provision of any of the LC Facility Documents after delivery
\nthereof pursuant to Section 4.01 hereof shall for any reason (other than
\npursuant to the terms thereof) cease to be valid and binding on or enforceable
\nagainst any of the Account Parties intended to be a party to it, or any such
\nAccount Party shall so state in writing; or<\/p>\n (i) Any of the following events or conditions shall have occurred and such
\nevent or condition, when aggregated with any and all other such events or
\nconditions set forth in this subsection (j), has resulted or is reasonably
\nexpected to result in liabilities of the Account Parties and\/or the ERISA
\nAffiliates in an aggregate amount that would have a Material Adverse Effect:\n<\/p>\n (a) any ERISA Event shall have occurred with respect to a Plan; or<\/p>\n (b) any of the Account Parties or any of the ERISA Affiliates shall have been
\nnotified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
\nLiability to such Multiemployer Plan; or<\/p>\n (c) any of the Account Parties or any of the ERISA Affiliates shall have been
\nnotified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
\nin reorganization, is insolvent or is being terminated, within the meaning of
\nTitle IV of ERISA, and, as a result of such reorganization, insolvency or
\ntermination, the aggregate annual contributions of the Account Parties and the
\nERISA Affiliates to all of the Multiemployer Plans that are in reorganization,
\nare insolvent or being terminated at such time have been or will be increased
\nover the amounts contributed to such Multiemployer Plans for the plan years of
\nsuch<\/p>\n<\/p>\n 39<\/p>\n
\nMultiemployer Plans immediately preceding the plan year in which such
\nreorganization, insolvency or termination occurs; or<\/p>\n (d) any “accumulated funding deficiency” <\/em>(as defined in Section 302
\nof ERISA and Section 412 of the Internal Revenue Code), whether or not waived,
\nshall exist with respect to one or more of the Plans; or<\/p>\n(e) or any Lien shall exist on the property and assets of any of the Account
\nParties or any of the ERISA Affiliates in favor of the PBGC,<\/p>\n then, and in any such event, the LC Issuer may, by notice to the Company, (A)
\ndeclare the obligation of the LC Issuer to issue further Letters of Credit to be
\nterminated, whereupon the same shall forthwith terminate, (B) declare amounts
\npayable under this Agreement to be forthwith due and payable, whereupon all such
\namounts shall become and be forthwith due and payable, without presentment,
\ndemand, protest or further notice of any kind, all of which are hereby expressly
\nwaived by each Account Party and\/or (C) demand from time to time that the
\nCompany, and if such demand is made the Company shall, pay to the LC Issuer, an
\namount in immediately available funds equal to the then outstanding Letter of
\nCredit Liability (plus the additional amounts specified by Section 2.11(c), if
\napplicable) which shall be held by the LC Issuer as cash collateral in the LC
\nCollateral Account and applied to the reduction of such Letter of Credit
\nLiability as drawings are made on outstanding Letters of Credit
\nprovided<\/u>, however<\/u>, that in the event of an actual or deemed entry
\nof an order for relief with respect to the Company or any of the LC Subsidiaries
\nunder the Federal Bankruptcy Code, the obligation of the LC Issuer to issue
\nLetters of Credit shall automatically be terminated and all such amounts due
\nunder this Agreement shall automatically become and be due and payable, without
\npresentment, demand, protest or any notice of any kind, all of which are hereby
\nexpressly waived by each Account Party.<\/p>\n ARTICLE VIII <\/strong><\/p>\nMISCELLANEOUS <\/strong><\/p>\nSECTION 8.01 Amendments, Etc.<\/u> (a) No amendment or waiver of any
\nprovision of this Agreement or any other LC Facility Document, nor consent to
\nany departure by the Company or any LC Subsidiary therefrom, shall in any event
\nbe effective unless the same shall be in writing and signed by the LC Issuer,
\nprovided<\/u>, however<\/u>, that, except for amendments that are
\ncontemplated to give effect to the terms hereof (including, without limitation,
\nSection 2.09 hereof and any amendment required to give effect to any assignment
\npermitted hereunder), no such amendment, waiver or consent in relation to any
\nmaterial provision of this Agreement (including, without limitation, the
\nTermination Date and any fees or other amounts payable hereunder) shall be
\neffective unless the respective letter of credit issuing banks under each of the
\nOther LC Facilities shall also have given their prior written consent thereto.
\nAll waivers and consents granted under this Section 8.01 shall be effective only
\nin the specific instance and for the specific purpose for which given.<\/p>\n<\/p>\n 40<\/p>\n
\n(b) In the event of any amendment or modification to the terms of any
\ncovenant set forth in the Revolving Credit Agreement, the LC Issuer and the
\nAccount Parties agree that an equivalent amendment or modification shall be
\ndeemed made in respect of the terms of the covenants set forth in this Agreement
\n(with immediate effect upon the effectiveness of the amendment or modification
\nunder the Revolving Credit Agreement), so that the terms of the covenants in
\nthis Agreement and the Revolving Credit Agreement shall, at all times, be the
\nsame; provided, that if the LC Issuer is not a “Lender” under the Revolving
\nCredit Agreement, this Section 8.01(b) shall be of no further force and effect.
\nThe LC Issuer shall provide the Company and the LC Subsidiaries with written
\nnotice of any such deemed amendment or modification as provided in Section 8.02,
\nwhereupon such deemed amendment or modification shall become effective.<\/p>\n SECTION 8.02 Notices, Etc<\/u>. All notices and other communications
\nprovided for hereunder shall be in writing (including telecopier or electronic
\nmail) and mailed, sent by overnight courier, telecopied, emailed, or delivered,
\nif to the Company or any other Account Party, at its address at 2 Folsom Street,
\nSan Francisco, CA 94105, Attention: Treasurer, Telecopier: 415-427-4015, email:
\nsabrina_simmons@gap.com; with a copy to 2 Folsom Street, San Francisco, CA
\n94105, Attention: General Counsel, Telecopier: 415-427-6982, email:
\nlauri_shanahan@gap.com; and to 2 Folsom Street, San Francisco, CA 94105,
\nAttention: Associate General Counsel, Telecopier: 415-427-7475, email:
\ntom_lima@gap.com; if to the LC Issuer, at its address at ___________, Attention:
\n________, Telecopier: _____________ or, as to each party, at such other address
\nor to such other person as shall be designated by such party in a written notice
\nto the other parties. All such notices and communications shall, when mailed, be
\neffective three days after being deposited in the mails, when sent by overnight
\ncourier, be effective one day after being sent by overnight courier, and when
\ntelecopied or sent by electronic mail, be effective when received (and, with
\nrespect to notices and communications sent by electronic mail, upon confirmation
\nby the recipient of the receipt of such notice or communication), respectively;
\nand when delivered by hand, be effective upon delivery except that notices and
\ncommunications to the LC Issuer pursuant to Article II shall not be effective
\nuntil received by the LC Issuer.<\/p>\n SECTION 8.03 No Waiver; Remedies<\/u>. No failure on the part of the LC
\nIssuer to exercise, and no delay in exercising, any right hereunder shall
\noperate as a waiver thereof; nor shall any single or partial exercise of any
\nsuch right preclude any other or further exercise thereof or the exercise of any
\nother right. The remedies herein provided are cumulative and not exclusive of
\nany remedies provided by law.<\/p>\n SECTION 8.04 Costs and Expenses<\/u>.<\/p>\n (a) The Company agrees to pay within 30 days after presentation of a
\nstatement of account all reasonable costs and expenses of the LC Issuer incurred
\nin connection with the preparation, execution, delivery, modification and
\namendment of this Agreement, and the other documents to be delivered hereunder,
\nincluding, without limitation, the reasonable fees and out-of-pocket expenses of
\none counsel (which shall be the same counsel, without duplication, for the Agent
\nunder the Revolving Credit Agreement) for the LC Issuer (and appropriate local
\ncounsel) with respect thereto and with respect to<\/p>\n<\/p>\n 41<\/p>\n
\nadvising the LC Issuer as to its rights and responsibilities under this
\nAgreement. The Company further agrees to pay within 30 days after presentation
\nof a statement of account all costs and expenses of the LC Issuer (including,
\nwithout limitation, reasonable and documented fees and expenses of counsel),
\nincurred in connection with the enforcement (whether through negotiations, legal
\nproceedings or otherwise) of the LC Facility Documents, the Letters of Credit,
\nand the other documents to be delivered hereunder and thereunder.<\/p>\n (b) The Company agrees to indemnify and hold harmless the LC Issuer and its
\nAffiliates and their respective officers, directors, employees, agents and
\nadvisors (each, an “Indemnified Party<\/u>“) from and against any and all
\nclaims (other than lost profits), damages, liabilities and expenses (including,
\nwithout limitation, reasonable and documented fees and disbursements of one
\ncounsel, absent a conflict of interest), which may be incurred by or asserted
\nagainst 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
\nCompany, or by any Subsidiary of the Company, of all or any portion of the stock
\nor substantially all the assets of any Person or any use or proposed use of the
\nLetters of Credit by any Account Party, except to the extent such claim, damage,
\nliability or expense shall have resulted from such Indemnified Party153s 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 Company may
\notherwise have. Without prejudice to the survival of any other obligation of the
\nCompany hereunder, the indemnities and obligations of the Company contained in
\nthis Section 8.04 shall survive the payment in full of all the Obligations of
\nthe Account Parties.<\/p>\n SECTION 8.05 Right of Set-off<\/u>. Upon the occurrence and during the
\ncontinuance of any Event of Default, the LC Issuer and each of its Affiliates is
\nhereby authorized at any time and from time to time, to the fullest extent
\npermitted by law, to set off and apply any and all deposits (general or special,
\ntime or demand, provisional or final) at any time held and other indebtedness at
\nany time owing by the LC Issuer or such Affiliate to or for the credit or the
\naccount of any Account Party against any and all of the obligations of such
\nAccount Party now or hereafter existing under this Agreement to the LC Issuer,
\nwhether or not the LC Issuer shall have made any demand under this Agreement and
\nalthough such obligations may be unmatured (it being understood and agreed that,
\nnotwithstanding anything in this Agreement or any of the other LC Facility
\nDocuments to the contrary, accounts, deposits, sums, securities or other
\nproperty of any Foreign Subsidiary or of any Subsidiary of a Foreign Subsidiary
\n(including any Foreign Subsidiary or any Subsidiary of a Foreign Subsidiary that
\nis an LC Subsidiary) will not serve at any time, directly or indirectly, to
\ncollateralize or otherwise offset the Obligations of the Company or any Domestic
\nSubsidiary, and, in addition, unless otherwise agreed to by the Company, the
\naccounts, deposits, sums, securities or other property of a Foreign Subsidiary
\nor Subsidiary of a Foreign Subsidiary will only serve to collateralize or offset
\nthe Obligations of another Foreign Subsidiary or Subsidiary of a Foreign
\nSubsidiary that is an LC Subsidiary if such former Foreign Subsidiary or
\nSubsidiary of a Foreign Subsidiary is owned by such latter Foreign Subsidiary or
\nSubsidiary of a Foreign Subsidiary that is an LC Subsidiary). The LC<\/p>\n<\/p>\n 42<\/p>\n
\nIssuer agrees promptly to notify the Company after any such set-off and
\napplication made by the LC Issuer or any of its Affiliates, provided<\/u>,
\nthat<\/u>, the failure to give such notice shall not affect the validity of
\nsuch set-off and application. The rights of the LC Issuer and its Affiliates
\nunder this Section 8.05 are in addition to other rights and remedies (including,
\nwithout limitation, other rights of set-off) which the LC Issuer and its
\nAffiliates may have.<\/p>\n SECTION 8.06 Binding Effect<\/u>. This Agreement shall become effective
\nwhen it shall have been executed by the Company and each LC Subsidiary to be a
\nparty hereto on the date hereof, and the LC Issuer and thereafter shall be
\nbinding upon and inure to the benefit of the Company, each LC Subsidiary, and
\nthe LC Issuer and their respective successors and assigns, except that the
\nCompany and each LC Subsidiary shall not have the right to assign its respective
\nrights hereunder or any interest herein without the prior written consent of the
\nLC Issuer.<\/p>\n SECTION 8.07 Assignments and Participations<\/u>. (a) The LC Issuer may,
\nand if demanded by the Company (following a demand by the LC Issuer pursuant to
\nSection 2.07 or 3.02 hereof, upon at least 10 days153 notice to the LC Issuer)
\nwill, assign to one or more banks or other entities all or a portion of its
\nrights and obligations under this Agreement (including, without limitation, all
\nor a portion, respectively, of the Facility Amount); provided<\/u>,
\nhowever<\/u>, that (i) the respective amounts of the rights and obligations in
\nrelation to the Facility Amount being assigned pursuant to each such assignment
\n(determined as of the date of such assignment with respect to such partial
\nassignment) shall in no event be less than $50,000,000 (or an integral multiple
\nof $25,000,000 in excess thereof), (ii) except during the continuance of a
\nDefault, each such assignment shall be (a) to an Affiliate or (b) to an Eligible
\nAssignee consented to by the Company (following reasonable advance written
\nnotice to the Company, which consent shall not, in the case of any assignment to
\nany “LC Issuer” party to the Other LC Facilities only, be unreasonably
\nwithheld), (iii) each such assignment made as a result of a demand by the
\nCompany pursuant to this Section 8.07(a) shall be arranged by the Company (at
\nits expense) after consultation with the LC Issuer and shall be either an
\nassignment of all of the rights and obligations of the LC Issuer under this
\nAgreement or an assignment of a portion of such rights and obligations made
\nconcurrently with another such assignment or other such assignments which
\ntogether cover all of the rights and obligations of the LC Issuer under this
\nAgreement, (iv) the LC Issuer shall not be obligated to make any such assignment
\nas a result of a demand by the Company pursuant to this Section 8.07(a) unless
\nand until the LC Issuer shall have received one or more payments from either the
\nCompany or one or more Eligible Assignees in an aggregate amount at least equal
\nto all reimbursement amounts and other amounts payable to the LC Issuer under
\nthis Agreement, and (v) such assignee and the LC Issuer shall enter into such
\nagreement as they deem appropriate and (vi) such assignee, the Company and the
\nLC Subsidiaries shall enter into a letter of credit agreement and related
\ndocuments substantially similar to the LC Facility Documents with respect to
\nsuch assignment and the Facility Amount shall be reduced by the amount of such
\nassignment (but not reduced to an amount less than the aggregate amount of all
\nLetter of Credit Liability).<\/p>\n (b) The LC Issuer may sell participations to one or more banks or other
\nentities in or to all or a portion of its rights and obligations under this
\nAgreement (including, without limitation, all or a portion of its commitment
\nwith respect to the Facility Amount); provided<\/u>, however<\/u>, that (i)
\nthe LC Issuer153s obligations under this Agreement<\/p>\n<\/p>\n 43<\/p>\n
\n(including, without limitation, its commitment with respect to the Facility
\nAmount) shall remain unchanged, (ii) the LC Issuer shall remain solely
\nresponsible to the other parties hereto for the performance of such obligations,
\nand (iii) the Company and the LC Issuer shall continue to deal solely and
\ndirectly with the LC Issuer in connection with the LC Issuer153s rights and
\nobligations under this Agreement, provided<\/u>, further<\/u>, that, to the
\nextent of any such participation (unless otherwise stated therein and subject to
\nthe preceding proviso<\/u>), the purchaser of such participation shall, to the
\nfullest extent permitted by law, have the same rights and benefits hereunder as
\nit would have if it were the LC Issuer; and provided<\/u>, further<\/u>,
\nthat each such participation shall be granted pursuant to an agreement providing
\nthat the purchaser thereof shall not have the right to consent or object to any
\naction by the selling LC Issuer (who shall retain such right) other than an
\naction which would (i) reduce any amount due hereunder with respect to the
\nLetters of Credit or other amounts or fees in which such purchaser has an
\ninterest, (ii) postpone any date fixed for payment of such amounts due with
\nrespect to Letters of Credit or other amount or such fees, or (iii) extend the
\nTermination Date.<\/p>\n (c) Upon written request of the Company to the LC Issuer, the LC Issuer
\nshall, to the extent consistent with the policies of the LC Issuer, inform the
\nCompany of the Dollar amount of any Full Term Participation (as hereinafter
\ndefined) that the LC Issuer has entered into; provided<\/u>, however<\/u>,
\nthat the LC Issuer shall not be obligated to disclose such information if the
\ndisclosure thereof would constitute a violation of law or regulation or violate
\nany confidentiality agreement to which the LC Issuer is subject. For the
\npurposes of this subsection (d), “Full Term Participation<\/u>” means a
\nparticipation by the LC Issuer to another Person whereby such other Person has
\npurchased (pursuant to a participation agreement) all or a portion of the LC
\nIssuer153s commitment with respect to the Facility Amount from the effective date
\nof such participation agreement to the Termination Date.<\/p>\n (d) Notwithstanding anything herein contained to the contrary, the LC Issuer
\nor any of its Affiliates may assign any of its rights under this Agreement to
\nany Federal Reserve Bank without notice to or consent of the Company.<\/p>\n (e) If the LC Issuer requests any payment from the Company under Section 2.07
\nor 3.02 hereof, then, subject to Section 8.07(a) hereof and provided no Default
\nor Event of Default shall have occurred and be continuing, the Company may
\nrequest the LC Issuer to (and, upon such request, the LC Issuer, without any
\nobligation to pay any fees in respect thereof, shall) assign all of its rights
\nand obligations under this Agreement to one or more Eligible Assignees in
\naccordance with Section 8.07(a) hereof provided that at the time of any such
\nassignment the Company has paid to the LC Issuer all amounts due it hereunder.\n<\/p>\n SECTION 8.08 Severability of Provisions<\/u>. Any provision of this
\nAgreement which is prohibited or unenforceable in any jurisdiction shall, as to
\nsuch jurisdiction, 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.<\/p>\n<\/p>\n 44<\/p>\n
\nSECTION 8.09 Independence of Provisions<\/u>. All agreements and covenants
\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.<\/p>\n SECTION 8.10 Confidentiality<\/u>. The LC Issuer agrees that it will not
\ndisclose to any third party any Confidential Information provided to it by the
\nCompany; provided<\/u>, that<\/u>, the foregoing will not (a) restrict the
\nability of the LC Issuer and any letter of credit participants from freely
\nexchanging Confidential Information among themselves (and its Affiliates,
\nemployees, attorneys, agents and advisors), (b) restrict the ability to disclose
\nConfidential Information to a prospective Eligible Assignee or participant,
\nprovided<\/u>, that<\/u>, such Eligible Assignee or participant executes a
\nconfidentiality agreement with the LC Issuer agreeing to be bound by the terms
\nhereof prior to disclosure of Confidential Information to such Eligible Assignee
\nor participant or (c) prohibit the disclosure of Confidential Information to the
\nextent: (i) the Confidential Information is or has already become part of the
\npublic domain at the time of disclosure, by publication or otherwise, except by
\nbreach of this Section 8.10, (ii) the Confidential Information can be
\nestablished by written evidence to have already been in the lawful possession of
\nthe LC Issuer prior to the time of disclosure; or (iii) the Confidential
\nInformation is received by the LC Issuer from a third party not known to have a
\nsimilar restriction and without breach of this Section 8.10, or (iv) the
\nConfidential Information is required to be disclosed by order of a court of
\ncompetent jurisdiction, administrative agency or governmental body, or by
\nsubpoena, summons or other legal process, or by law, rule or regulation, or by
\napplicable regulatory or professional standards provided that prior to such
\ndisclosure the Company and the non-disclosing party are each given reasonable
\nadvance notice of such order and an opportunity to object to such disclosure;
\nprovided<\/u>, that<\/u>, no such notice or opportunity shall be required if
\ndisclosure is required in connection with an examination by a regulatory
\nauthority or is required in such circumstances where the applicable Governmental
\nAuthority does not permit such notice or opportunity (it being understood the LC
\nIssuer will inform such authority of the confidential nature of the Confidential
\nInformation being disclosed).<\/p>\n SECTION 8.11 Headings<\/u>. Article and Section headings in this Agreement
\nare included for convenience of reference only and shall not constitute a part
\nof this Agreement for any other purpose.<\/p>\n SECTION 8.12 Entire Agreement<\/u>. This Agreement sets forth the entire
\nagreement of the parties with respect to its subject matter and supersedes all
\nprevious understandings, written or oral, in respect thereof.<\/p>\n SECTION 8.13 Execution in Counterparts<\/u>. This Agreement may be executed
\nin any 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<\/p>\n SECTION 8.14 Consent to Jurisdiction<\/u>. (a) Each of the parties hereto
\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<\/p>\n<\/p>\n 45<\/p>\n
\narising out of or relating to this Agreement or any other LC Facility
\nDocument or the Letters of Credit, and each of the parties hereby irrevocably
\nagrees that all claims in respect of such action or proceeding may be heard and
\ndetermined in such New York State court or such Federal court. Each of the
\nparties hereby irrevocably agrees, to the fullest extent each may effectively do
\nso, that each will not assert any defense that such courts do not have subject
\nmatter or personal jurisdiction of such action or proceeding or over any party
\nhereto. Each of the parties hereby irrevocably consents to the service of copies
\nof the summons and complaint and any other process which may be served in any
\nsuch action or proceeding by certified mail, return receipt requested, or by
\ndelivering of a copy of such process to such party at its address specified in
\nSection 8.02 hereof or by any other method permitted by law. Each of the parties
\nhereby agrees that a final judgment in any such action or proceeding shall be
\nconclusive and may be enforced in other jurisdictions by suit on the judgment or
\nby any other manner provided by law.<\/p>\n (b) Nothing in this Section 8.14 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.<\/p>\n SECTION 8.15 GOVERNING LAW<\/u>. THIS AGREEMENT SHALL BE GOVERNED BY, AND
\nCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT, IN THE
\nCASE OF ARTICLE II, TO THE EXTENT SUCH LAWS ARE INCONSISTENT WITH THE UCP.<\/p>\n SECTION 8.16 WAIVER OF JURY TRIAL<\/u>. EACH OF THE COMPANY, THE LC
\nSUBSIDIARIES, AND THE LC ISSUER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
\nPERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
\nCOUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
\nRELATING TO THIS AGREEMENT OR ANY OTHER LC FACILITY DOCUMENT OR THE LETTERS OF
\nCREDIT, OR THE ACTIONS OF THE LC ISSUER IN CONNECTION WITH THE NEGOTIATION,
\nADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.<\/p>\n [The remainder of this page intentionally left blank.]<\/p>\n<\/p>\n 46<\/p>\n
\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nexecuted by their respective officers thereunto duly authorized, as of the date
\nfirst above written.<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| THE COMPANY<\/u><\/p>\n :<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| \n THE GAP, INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Sabrina Simmons<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Senior Vice President and Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \nTHE LC SUBSIDIARIES<\/u><\/td>\n<\/tr>\n\n| <\/td>\n<\/tr>\n | \n| \n BANANA REPUBLIC, LLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Sabrina Simmons<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Senior Vice President and Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GAP (CANADA) INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Sabrina Simmons<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Senior Vice President and Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GAP (FRANCE) S.A.S.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Lisa D. Mertens<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GAP (JAPAN) K.K.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Thomas J. Lima<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Director<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 47<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GAP (NETHERLANDS) B.V.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Julie H. Kanberg<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Managing Director<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GPS CONSUMER DIRECT, INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Sabrina Simmons<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Senior Vice President and Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GPS (GREAT BRITAIN) LIMITED<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Byron H. Pollitt, Jr.<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Director<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n OLD NAVY (CANADA) INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Sabrina Simmons<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Senior Vice President and Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n FORTH & TOWNE LLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Sabrina Simmons<\/p>\n<\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Senior Vice President and Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 48<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| THE LC ISSUER<\/u><\/p>\n :<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| \n JPMORGAN CHASE BANK<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Title<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Issuing Office:<\/p>\n K.K. Yeung, Vice President<\/p>\n 138 Shatin Rural Cmte Road, Floor 20<\/p>\n Hong Kong<\/p>\n Fax: 011-852-2923-7220<\/p>\n Email: KK.YEUNG@jpmorgan.com;<\/p>\n With a copy to:<\/p>\n Peter Lui, Assistant Treasurer<\/p>\n 138 Shatin Rural Cmte Road, Floor 20<\/p>\n Hong Kong<\/p>\n Fax: 011-852-2836-9666<\/p>\n Email: Peter.KM.Lui@jpmorgan.com<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 49<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7600],"corporate_contracts_industries":[9494],"corporate_contracts_types":[9561,9560],"class_list":["post-41090","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gap-inc","corporate_contracts_industries-retail__clothing","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41090","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41090"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41090"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41090"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41090"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | | | | | | | | | | | | | | | | | | |