SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the quarterly period ended July 31,
1999 or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the transition period from
______________ to ______________
Commission File Number 1-7562
THE GAP, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-1697231
(State of Incorporation) (I.R.S. Employer
Identification No.)
One Harrison
San Francisco, California 94105
(Address of principal executive offices)
Registrant's telephone number, including area code: (415) 427-2000
_______________________
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, $0.05 par value New York Stock Exchange, Inc.
(Title of class) Pacific Stock Exchange, Inc.
(Name of each exchange where registered)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of Common Stock, as of the latest practicable date.
Common Stock, $0.05 par value, 856,213,988 shares as of August 28,
1999
GAP INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
(In thousands, except par value) July 31, January 30, August 1,
1999 1999 1998
ASSETS
Current Assets:
Cash and equivalents $ 420,954 $ 565,253 $ 515,207
Short-term investments 14,989 - 29,532
Merchandise inventory 1,502,255 1,056,444 1,102,693
Other current assets 283,230 250,127 186,589
Total Current Assets 2,221,428 1,871,824 1,834,021
Property and equipment, net 2,229,729 1,876,370 1,576,440
Lease rights and other assets 227,426 215,725 172,688
Total Assets $4,678,583 $3,963,919 $3,583,149
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Notes payable $ 413,495 $ 90,690 $ 93,006
Accounts payable 742,370 684,130 530,275
Accrued expenses and other current liabilities 646,433 655,770 597,744
Income taxes payable 40,652 122,513 43,955
Total Current Liabilities 1,842,950 1,553,103 1,264,980
Long-Term Liabilities:
Long-term debt 542,279 496,455 496,250
Deferred lease credits and other liabilities 365,874 340,682 292,620
Total Long-Term Liabilities 908,153 837,137 788,870
Shareholders' Equity:
Common stock $.05 par value
Authorized 2,300,000 shares
Issued 1,003,911; 997,496
and 993,827 shares
Outstanding 858,936; 857,960
and 873,608 shares 50,196 49,875 49,691
Additional paid-in capital 578,550 349,037 379,050
Retained earnings 3,500,643 3,121,360 2,626,800
Accumulated other comprehensive loss (20,887) (12,518) (16,980)
Deferred compensation (28,948) (31,675) (34,365)
Treasury stock, at cost (2,152,074) (1,902,400) (1,474,897)
Total Shareholders' Equity 1,927,480 1,573,679 1,529,299
Total Liabilities and Shareholders' Equity $4,678,583 $3,963,919 $3,583,149
See accompanying notes to condensed consolidated financial statements.
</TABLE>
<TABLE>
<CAPTION>
GAP INC.
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(In thousands, except share and per share amounts)
Thirteen Weeks Ended Twenty-six Weeks Ended
July 31, August 1, July 31, August 1,
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Net sales $ 2,453,339 $ 1,904,970 $ 4,731,073 $ 3,624,682
Costs and expenses
Cost of goods sold and occupancy expenses 1,443,545 1,135,165 2,777,700 2,166,169
Operating expenses 693,297 550,128 1,308,446 1,022,272
Net interest expense (income) 3,171 678 7,809 (463)
Earnings before income taxes 313,326 218,999 637,118 436,704
Income taxes 117,497 82,125 238,919 163,764
Net earnings $ 195,829 $ 136,874 $ 398,199 $ 272,940
Weighted average number of shares - basic 857,352,256 874,424,014 855,909,900 874,444,241
Weighted average number of shares - diluted 898,991,202 914,563,361 899,521,052 913,074,899
Earnings per share - basic $ 0.23 $ 0.16 $ 0.47 $ 0.31
Earnings per share - diluted $ 0.22 $ 0.15 $ 0.44 $ 0.30
Cash dividends per share $ 0.02 $ 0.02 $ 0.04 $ 0.04
See accompanying notes to condensed consolidated financial statements.
</TABLE>
<TABLE>
<CAPTION>
GAP INC.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(In thousands) Twenty-six Weeks Ended
July 31, 1999 August 1, 1998
<S> <C> <C>
Cash Flows from Operating Activities:
Net earnings $ 398,199 $ 272,940
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 195,873 152,524
Tax benefit from exercise of stock options
and vesting of restricted stock 165,353 56,012
Changes in operating assets and liabilities:
Merchandise inventory (447,785) (371,397)
Other current assets (33,935) (5,858)
Accounts payable 58,989 115,212
Accrued expenses 6,826 196,461
Income taxes payable (81,521) (39,708)
Deferred lease credits and other current liabilities 32,543 18,248
Net cash provided by operating activities 294,542 394,434
Cash Flows from Investing Activities:
Net purchase of short-term investments (14,989) (29,532)
Net purchase of property and equipment (549,985) (349,025)
Acquisition of lease rights and other assets (19,521) (31,420)
Net cash used for investing activities (584,495) (409,977)
Cash Flows from Financing Activities:
Net increase in notes payable 328,516 10,761
Net issuance of long-term debt 49,710 -
Issuance of common stock 48,408 26,766
Net purchase of treasury stock (241,562) (379,860)
Cash dividends paid (37,963) (38,890)
Net cash provided by (used for) financing activities 147,109 (381,223)
Effect of exchange rate fluctuations on cash (1,455) (1,196)
Net decrease in cash and equivalents (144,299) (397,962)
Cash and equivalents at beginning of year 565,253 913,169
Cash and equivalents at end of quarter $ 420,954 $ 515,207
See accompanying notes to condensed consolidated financial statements.
</TABLE>
GAP INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The condensed consolidated balance sheets as of July 31, 1999 and August 1,
1998 and the interim condensed consolidated statements of earnings for the
thirteen and twenty-six weeks ended July 31, 1999 and August 1, 1998 and
cash flows for the twenty-six week periods ended July 31, 1999 and August
1, 1998 have been prepared by the Company, without audit. In the opinion
of management, such statements include all adjustments (which include only
normal recurring adjustments) considered necessary to present fairly the
financial position, results of operations and cash flows of the Company at
July 31, 1999 and August 1, 1998, and for all periods presented.
Certain information and disclosures normally included in the notes to the
annual financial statements prepared in accordance with generally accepted
accounting principles have been omitted from these interim financial
statements. It is suggested that these condensed consolidated financial
statements be read in conjunction with the consolidated financial
statements and notes thereto included in the Company's Annual Report on
Form 10-K for the year ended January 30, 1999.
The condensed consolidated balance sheet as of January 30, 1999 was derived
from the Company's January 30, 1999 balance sheet included in the Company's
1998 Annual Report on Form 10-K.
The results of operations for the twenty-six weeks ended July 31, 1999 are
not necessarily indicative of the operating results that may be expected
for the year ending January 29, 2000.
2. THREE-FOR-TWO STOCK SPLIT
On May 20, 1999, the Company's Board of Directors authorized a three-for-
two stock split of its common stock which was distributed on June 21, 1999
in the form of a stock dividend for shareholders of record at the close of
business on June 4, 1999. All share and per share amounts in the
accompanying condensed consolidated financial statements for all periods
have been restated to reflect the stock split.
3. COMPREHENSIVE EARNINGS
Comprehensive earnings include net earnings and other comprehensive losses.
Other comprehensive losses include foreign currency translation
adjustments and fluctuations in the fair market value of certain financial
instruments. Comprehensive earnings for the thirteen and twenty-six weeks
ended July 31, 1999 and August 1, 1998 were as follows (in thousands):
<TABLE>
<CAPTION>
Thirteen Twenty-six
Weeks Ended Weeks Ended Weeks Ended Weeks Ended
July 31, 1999 August 1, 1998 July 31, 1999 August 1, 1998
<S> <C> <C> <C> <C>
Net earnings $195,829 $ 136,874 $398,199 $272,940
Other comprehensive losses (408) (4,258) (8,369) (1,750)
Comprehensive earnings $195,421 $ 132,616 $389,830 $271,190
4. EARNINGS PER SHARE
Under SFAS No. 128, the Company provides dual presentation of EPS on a
basic and diluted basis. The Company's granting of certain stock options
and restricted stock and issuance of certain put options resulted in
potential dilution of basic EPS. The following summarizes the effects of
the assumed issuance of dilutive securities on weighted-average shares for
basic EPS.
</TABLE>
<TABLE>
<CAPTION>
Thirteen Twenty-six
Weeks Ended Weeks Ended Weeks Ended Weeks Ended
July 31, 1999 August 1, 1998 July 31, 1999 August 1, 1998
<S> <C> <C> <C> <C>
Weighted-average number of shares - basic 857,352,256 874,424,014 855,909,900 874,444,241
Incremental shares from assumed
issuance of:
Stock options 40,685,597 35,472,847 41,540,285 32,426,301
Restricted stock 941,906 4,666,500 2,052,413 6,204,357
Put options 11,443 - 18,454 -
Weighted-average number of shares - diluted 898,991,202 914,563,361 899,521,052 913,074,899
</TABLE>
The number of incremental shares from the assumed issuance of stock options
and restricted stock is calculated applying the treasury stock method.
Excluded from the above computations of weighted-average shares for diluted
EPS were options to purchase 112,694 and 254,712 shares of common stock
during the thirteen and twenty-six weeks ended July 31, 1999, respectively,
and 1,692,891 and 3,009,051 shares during the thirteen and twenty-six weeks
ended August 1, 1998, respectively. Additionally, put options to repurchase
750,000 shares during the thirteen and twenty-six weeks ended July 31, 1999
were excluded from the above computations. Issuance or repurchase of these
securities would have resulted in an antidilutive effect on EPS.
5. LONG-TERM DEBT
During the first quarter of fiscal 1999, the Company's Japanese subsidiary
issued $50 million of 10-year debt securities at 6.25 percent fixed
interest rate. The Company swapped the cash flows payable under these debt
securities to Japanese yen with a fixed interest rate of 2.43 percent.
These debt securities are recorded in the balance sheet at their market
value as of July 31, 1999.
6. PUT OPTIONS
At the end of the second quarter of fiscal 1999, the Company was obligated
under various put option contracts that were issued during the second
quarter to repurchase up to 1,500,000 shares of the Company's stock. The
contracts have exercise prices ranging from $43.33 to $46.00 per share,
with expiration dates through January 2000.
Deloitte & Touche LLP
50 Fremont Street Telephone: (415) 783-4000
San Francisco, California 94105-2230 Facsimile: (415) 783-4329
INDEPENDENT ACCOUNTANTS' REPORT
To the Board of Directors and Shareholders of
The Gap, Inc.:
We have reviewed the accompanying condensed consolidated balance sheets
of The Gap, Inc. and subsidiaries as of July 31, 1999 and August 1, 1998
and the related condensed consolidated statements of earnings for the
thirteen-week and twenty-six week periods ended July 31, 1999 and August
1, 1998 and the condensed consolidated statement of cash flows for the
twenty-six week periods ended July 31, 1999 and August 1, 1998. These
financial statements are the responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical
procedures to financial data and of making inquiries of persons
responsible for financial and accounting matters. It is substantially
less in scope than an audit conducted in accordance with generally
accepted auditing standards, the objective of which is the expression of
an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that
should be made to such consolidated financial statements for them to be
in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of The Gap, Inc. and
subsidiaries as of January 30, 1999, and the related consolidated
statements of earnings, shareholders' equity and cash flows for the year
then ended (not presented herein); and in our report dated February 25,
1999, we expressed an unqualified opinion on those consolidated financial
statements. In our opinion, the information set forth in the
accompanying consolidated balance sheet as of January 30, 1999 is fairly
stated in all material respects, in relation to the consolidated balance
sheet from which it was derived.
/s/ Deloitte & Touche LLP
August 11, 1999
Deloitte Touche
Tohmatsu
GAP INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The information below contains certain forward-looking statements which
reflect the current view of Gap Inc. (the "Company") with respect to
future events and financial performance. Wherever used, the words
"expect," "plan," "anticipate," "believe," and similar expressions
identify forward-looking statements.
Any such forward-looking statements are subject to risks and
uncertainties and the Company's future results of operations could differ
materially from historical results or current expectations. Some of
these risks include, without limitation, ongoing competitive pressures in
the apparel industry, risks associated with challenging international
retail environments, changes in the level of consumer spending or
preferences in apparel, trade restrictions and political or financial
instability in countries where the Company's goods are manufactured,
disruption to operations from Year 2000 issues, and/or other factors that
may be described in the Company's Annual Report on Form 10-K and/or other
filings with the Securities and Exchange Commission. Future economic and
industry trends that could potentially impact revenues and profitability
are difficult to predict.
It is suggested that this document be read in conjunction with the
Management's Discussion and Analysis included in the Company's Annual
Report on Form 10-K for the year ended January 30, 1999.
The Company does not undertake to publicly update or revise its forward-
looking statements even if experience or future changes make it clear
that any projected results expressed or implied therein will not be
realized.
<TABLE>
<CAPTION> RESULTS OF OPERATIONS
Net Sales
Thirteen Weeks Ended Twenty-six Weeks Ended
July 31, 1999 August 1, 1998 July 31, 1999 August 1, 1998
<S> <C> <C> <C> <C>
Net sales ($000) $2,453,339 $1,904,970 $4,731,073 $3,624,682
Total net sales growth percentage 29 42 31 41
Comparable store sales growth percentage 8 19 10 18
Net sales per average square foot $123 $116 $242 $225
Square footage of gross store space -
at end of period (000) 20,391 16,799
Number of Stores:
Beginning of Year 2,428 2,130
New stores 188 147
Expanded stores(1) 36 73
Closed stores (5) (5)
End of Period 2,611 2,272
(1) Expanded stores do not change store count.
The increases in net sales for the second quarter and first half of 1999
over the same periods last year were primarily attributable to the
increase in retail selling space through the opening of new stores (net
of stores closed) and the expansion of existing stores. Additionally, the
increase in comparable store sales also contributed to net sales growth
for both periods.
The increases in net sales per average square foot for the second quarter
and first half of 1999 were primarily attributable to increases in
comparable store sales.
Cost of Goods Sold and Occupancy Expenses
Cost of goods sold and occupancy expenses as a percentage of net sales
decreased 0.8 and 1.1 percentage points in the second quarter and first
half of 1999, respectively, from the same periods in 1998. The
improvements were driven by decreases in occupancy expenses as a
percentage of net sales. For the first half of 1999, the improvement in
occupancy expenses was slightly offset by a decrease in the merchandise
margin as a percentage of net sales.
For both the second quarter and first half of 1999, the decreases in
occupancy expenses as a percentage of net sales were primarily
attributable to new real estate initiatives to reduce occupancy expenses,
changes in the mix of stores toward larger, more cost effective stores
and leverage achieved from the increases in comparable store sales. The
decrease in the merchandise margin as a percentage of net sales for the
first half of 1999 was primarily attributable to a greater percentage of
merchandise sold at markdown when compared to the same period last year.
As a general business practice, the Company reviews its inventory levels
in order to identify slow-moving merchandise and broken assortments
(items no longer in stock in a sufficient range of sizes) and uses
markdowns to clear merchandise. Such markdowns may have an adverse
impact on earnings, depending upon the extent of the markdowns and amount
of inventory affected.
Operating Expenses
Operating expenses as a percentage of net sales decreased 0.6 percentage
points for the second quarter over the prior year primarily due to the
timing of advertising campaigns. Operating expenses as a percentage of
net sales decreased 0.5 percentage points for the first half of 1999 due
to lower overhead expenses as a percentage of net sales partially offset
by higher advertising and marketing costs as a percentage of net sales as
a part of the Company's brand development efforts.
Net Interest Expense (Income)
Net interest expense increased in the second quarter and first half of
1999 over the comparable prior year periods primarily due to lower
interest income resulting from a decrease in cash available for
investment.
Income Taxes
The effective tax rate was 37.5 percent for the thirteen and twenty-six
weeks ended July 31, 1999 and August 1, 1998.
LIQUIDITY AND CAPITAL RESOURCES
The following sets forth certain measures of the Company's liquidity:
Twenty-six Weeks Ended
July 31, 1999 August 1, 1998
Cash provided by operating activities ($000) $299,687 $394,434
Working capital ($000) $378,478 $569,041
Current ratio 1.21:1 1.45:1
For the twenty-six weeks ended July 31, 1999, the decrease in cash flows
provided by operating activities, compared to the same period in the
prior year, was primarily attributable to a decrease in accrued expenses
and an increase in merchandise inventory partially offset by an increase
in net earnings and an increase in the tax benefit from the vesting of a
large restricted stock grant.
The Company funds inventory expenditures during normal and peak periods
through a combination of cash flows provided by operations and short-term
financing arrangements. The Company's business follows a seasonal
pattern, peaking over a total of about ten to thirteen weeks during the
Back-to-School and Holiday periods.
The Company has committed credit facilities totaling $1 billion,
consisting of an $850 million, 364-day revolving credit facility, and a
$150 million, 5-year revolving credit facility through June 28, 2003.
These credit facilities provide for the issuance of up to $500 million in
letters of credit. The Company has additional uncommitted credit
facilities of $460 million for the issuance of letters of credit. At
July 31, 1999, the Company had outstanding letters of credit of
approximately $895 million. The credit facilities also provide backup
for the Company's $500 million commercial paper program. The Company had
$300 million of commercial paper outstanding at July 31, 1999.
To provide financial flexibility, the Company filed a shelf registration
statement in January 1999 with the Securities and Exchange Commission for
$500 million of debt securities. The net proceeds from any issuance are
expected to be used for general corporate purposes, including expansion
of stores, distribution centers and headquarters facilities, brand
investment, development of additional distribution channels and
repurchases of the Company's common stock pursuant to its ongoing
repurchase program. The Company has not issued any debt under this
registration statement and no assurances can be given that the Company
will issue any debt under this registration statement.
During the first quarter of fiscal 1999, the Company's Japanese
subsidiary issued $50 million of 10-year debt securities. The net
proceeds are intended to be used for general corporate purposes. The
cash flows relating to the bonds were swapped for the equivalent amounts
in Japanese yen to minimize currency exposure.
For the twenty-six weeks ended July 31, 1999, capital expenditures, net
of construction allowances and dispositions, totaled approximately $528
million. These expenditures were used to expand the Company's store base
and distribution facilities. During the first half of 1999, the Company
experienced a net increase in store space of approximately 1,634,000
square feet, or 9 percent, due to the addition of 188 new stores, the
expansion of 36 stores and the remodeling of certain stores.
For 1999, the Company expects capital expenditures to exceed $1 billion,
net of construction allowances. This represents the addition of 400 to
470 new stores, the expansion of approximately 100 to 110 stores, the
remodeling of certain stores, as well as amounts for headquarters
facilities, distribution centers and equipment. The Company expects to
fund such capital expenditures with cash flow from operations and other
sources of financing. Square footage growth is expected to be in excess
of 20 percent before store closings. New stores are generally expected
to be leased.
During 1998, the Company purchased land on which to construct additional
headquarter facilities in San Francisco and San Bruno, California. The
estimated total project costs are approximately $240 million and $100
million, respectively. Construction commenced on the San Francisco
facility during the third quarter of 1998 and is estimated to continue
through late 2001. Construction commenced during the first quarter of
1999 for the San Bruno facility and is estimated to continue through late
2000.
During second quarter of 1999, the Company opened a distribution center
that was constructed over fiscal 1997 and 1998 for a total cost of
approximately $60 million. During the second quarter of 1999, the
Company commenced construction of a $55 million expansion of this
distribution center which is expected to be complete in mid-2000.
Additionally during 1999, the Company commenced construction on three
additional distribution facilities for an estimated total cost of
approximately $300 million. Approximately half of these expenditures
will be incurred during fiscal 1999, with the remainder incurred during
fiscal 2000. These expenditures are included in the projected capital
expenditures as described above. The first facility opened in the second
quarter of 1999. The remaining two facilities are expected to open in
the first quarter of 2000 and third quarter of 2000, respectively.
On May 20, 1999, the Company's Board of Directors authorized a three-for-
two stock split of the Company's common stock that was distributed on
June 21, 1999 in the form of a stock dividend for shareholders of record
at the close of business on June 4, 1999. All share and per share
amounts below and in the accompanying condensed consolidated financial
statements for all periods have been restated to reflect the stock split.
During the first quarter of 1999, the Company completed a 101 million
share repurchase program approved in October 1996 by acquiring
approximately 2.1 million shares for approximately $94 million. In
addition, in the first half of 1999, under the 67.5 million share
repurchase program approved in October 1998, the Company acquired
approximately 3.9 million shares for approximately $164 million.
During the second quarter, the Company issued put option contracts to
repurchase up to 1,500,000 shares of the Company's stock. The contracts
have exercise prices ranging from $43.33 to $46.00 per share, with
expiration dates through January 2000.
The Company operates in foreign countries which exposes it to market
risk associated with foreign currency exchange rate fluctuations. The
Company's risk management policy is to hedge substantially all
merchandise purchases for foreign operations through the use of foreign
exchange forward contracts to minimize this risk.
YEAR 2000 ISSUE
The Year 2000 issue is primarily the result of computer programs using a
two-digit format, as opposed to four digits, to indicate the year. Such
computer systems may be unable to interpret dates beyond the year 1999,
which could cause a system failure or other computer errors, leading to a
disruption in the operation of such systems. In 1996, the Company
established a project team to coordinate and address Year 2000 issues.
The team has focused its efforts on three areas: (1) information systems
software and hardware; (2) facilities and distribution equipment and (3)
third-party relationships.
The Program. The Company adopted a five-phase Year 2000 program
consisting of: Phase I-identification and ranking of the components of
the Company's systems, equipment and suppliers that may be vulnerable to
Year 2000 problems; Phase II-assessment of items identified in Phase I;
Phase III-remediation or replacement of non-compliant systems and
components and determination of solutions for non-compliant suppliers;
Phase IV-testing of systems and components following remediation and
Phase V-developing contingency plans to address the most reasonably
likely worst case Year 2000 scenarios. The Company has completed Phases
I and II, is substantially complete with Phase III, and expects to
complete Phase IV by December 1999 and Phase V by the end of the third
quarter of 1999.
Information Systems Software and Hardware. The Company has completed
Phase III, with the exception of the Company's human resources
administration system and systems that support the Company's on-line and
catalog support division. Phase IV testing is being conducted
concurrently with Phase III activities. Management believes that the
Company will complete all remediation, certification testing and
implementation of the systems identified above by November 1999, and
integration testing by December 1999. Phase V contingency planning has
begun and is expected to be completed by the end of the third quarter of
1999.
Facilities and Distribution Equipment. The Company has completed Phase
III and Phase IV; Phase V contingency planning is expected to be
completed by the end of the third quarter of 1999.
Third-Party Relationships. Some suppliers and vendors that provide
critical products and services have not confirmed their Year-2000
readiness to the Company. As a result, the Company is in the process of
developing contingency plans to mitigate this risk. The plans include
addressing problems encountered in the supply chain, substitution of
vendors where possible and work-arounds for loss of important services.
Phase V contingency planning is expected to be completed by the end of
the third quarter of 1999.
Risks / Contingency Plans. Based on the assessment efforts to date, the
Company does not believe that the Year 2000 issue will have a material
adverse effect on its financial condition or results of operations. The
Company operates a large number of geographically dispersed stores and
has a large supplier base and believes that these factors will mitigate
any adverse impact. The Company's beliefs and expectations, however, are
based on certain assumptions and expectations that ultimately may prove
to be inaccurate, including the Year 2000 viability of sourcing
countries, and compliance of individual third party vendors and
suppliers.
The Company has identified that a significant disruption in the product
supply chain represents the most reasonably likely worst case Year 2000
scenario. Potential sources of risk include (a) the inability of
principal suppliers or logistics providers to be Year 2000-ready, which
could result in delays in product deliveries from such suppliers or
logistics providers and (b) disruption of the distribution channel,
including ports, transportation vendors, and the Company's own
distribution centers as a result of a general failure of systems and
necessary infrastructure such as electricity supply. The Company plans
to flow inventory around an assumed period of disruption to the supply
chain, which will include accelerating delivery of selected critical
products in advance of January 2000. However, a substantial, extended
disruption in the product supply chain could have a material adverse
effect on the Company's financial condition and results of operations.
The Company does not expect the costs associated with its Year 2000
program to be material. Since the inception of the program, the Company
has incurred $26 million through July 31, 1999 to address the Year 2000
issue. The Company estimates that the total costs for the Year 2000
program will be approximately $50 million.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The market risk of the Company's financial instruments as of July 31,
1999 has not significantly changed since January 30, 1999 with the
exception of the issuance of $50 million of long-term debt during the
first quarter. The Company's Japanese subsidiary issued $50 million of
10-year debt securities during the first quarter with a fixed interest
rate of 6.25 percent payable in US dollars. The Company swapped the cash
flows payable under these debt securities to Japanese yen with a fixed
interest rate of 2.43 percent. These debt securities are recorded in the
balance sheet at their market value as of July 31, 1999.
The market risk profile of the Company on January 30, 1999 is disclosed
in the Company's 1998 Annual Report on Form 10-K.
The net change in unrealized losses since January 30, 1999 for the
Company's foreign exchange contracts and long-term debt was an unrealized
gain of $13 million.
PART II
OTHER INFORMATION
Item 4. Submissions of Matters to a Vote of Security Holders (as
reported on a post June 21, 1999 split basis)
a) On May 4, 1999 the Annual Meeting of Shareholders of the
Company was held in San Francisco, California. There were 859,421,899
shares of common stock outstanding on the record date and entitled to
vote at the Annual Meeting.
b) The following directors were elected:
Vote For Vote Withheld
Adrian D.P. Bellamy 749,648,271 2,167,776
Evan S. Dobelle 734,478,447 8,337,600
Millard S. Drexler 749,648,308 2,167,738
Donald G. Fisher 749,646,411 2,169,636
Doris F. Fisher 745,496,238 6,319,809
Robert J. Fisher 749,645,997 2,170,050
Glenda A. Hatchett 743,474,472 8,341,575
John M. Lillie 749,651,620 2,164,426
Charles R. Schwab 749,647,708 2,168,338
Brooks Walker, Jr. 749,621,884 2,194,162
Sergio Zyman 749,649,204 2,166,843
There were no abstentions and no broker non-votes.
c) The amendment to the Amended and Restated Certificate of
Incorporation to increase the authorized number of shares of Common Stock
was approved with 707,333,002 votes in favor and 43,109,461 against.
There were 1,373,583 abstentions.
d) The Executive Long-Term Cash Award Performance Plan was
approved with 742,856,188 votes in favor and 6,735,421 against.
There were 2,224,437 abstentions.
e) The selection of Deloitte & Touche, LLP as independent
auditors for the fiscal year ending January 29, 2000 was ratified with
749,877,150 votes in favor and 291,181 against.
There were 1,647,715 abstentions.
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
(10.1) Amended and Restated Credit Agreement, dated as
of June 29, 1999 among The Gap, Inc., Citibank, N.A. Bank of
America National Trust and Savings Association, HSBC Bank
USA and Morgan Guaranty Trust Company of New York, Salomon
Smith Barney Inc., and Citicorp USA Inc.
(10.2) Employment arrangement, dated July 6, 1999, between
Registrant and Heidi Kunz
(15) Letter re: Unaudited Interim Financial Information
(27) Financial Data Schedule
b) The Company did not file any reports on Form 8-K during the
three months ended July 31, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
THE GAP, INC.
Date: September 10, 1999 By /s/ Heidi Kunz
Heidi Kunz
Chief Financial Officer
(Principal financial officer of the registrant)
Date: September 10, 1999 By /s/ Millard S. Drexler
Millard S. Drexler
President and Chief Executive Officer
EXHIBIT INDEX
(10.1) Amended and Restated Credit Agreement, dated as of June
29, 1999 among The Gap, Inc., Citibank, N.A., Bank of America
National Trust and Savings Association, HSBC Bank USA and Morgan
Guaranty Trust Company of New York, Salomon Smith Barney Inc., and
Citicorp USA Inc.
(10.2) Employment arrangement, dated July 6, 1999, between
Registrant and Heidi Kunz
(15) Letter re: Unaudited Interim Financial
Information
(27) Financial Data Schedule
</TABLE>
Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 29,
1999 (this "Agreement"), among The Gap, Inc., a Delaware corporation
(the "Borrower"), the LC Subsidiaries (as hereinafter defined), the
banks and financial institutions (the "Lenders") listed on the
signature pages hereof, Citibank, N.A. ("Citibank"), as issuing bank
(the "Issuing Bank"), Bank of America National Trust and Savings
Association ("BankAmerica"), HSBC Bank USA ("HSBC") and Morgan
Guaranty Trust Company of New York ("Morgan Guaranty", and together
with BankAmerica and HSBC, the "Senior Managing Agents"), as senior
managing agents, Salomon Smith Barney Inc. ("SSB"), as arranger (the
"Arranger"), and Citicorp USA Inc. ("CUSA"), as agent (the "Agent")
for the Lenders and the Issuing Bank hereunder.
PRELIMINARY STATEMENTS:
(1) The Borrower, certain of its subsidiaries, certain
banks and financial institutions, Citibank, as issuing bank, and the
Agent entered into a Credit Agreement dated as of July 1, 1997 (as
amended by the First Letter Amendment dated June 30, 1998, the "Original
Agreement").
(2) The Borrower, the Lenders, Citibank, as Issuing Bank,
the Senior Managing Agents, the Arranger and the Agent desire to amend
and restate the Original Agreement as set forth below.
NOW THEREFORE, the Borrower, the LC Subsidiaries, the Lenders,
the Issuing Bank, the Senior Managing Agents, the Arranger and the Agent
agree to amend and restate the Original Agreement in its entirety to read
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms
of the terms defined):
"A Advance" means an advance by an A Lender to the Borrower
as part of an A Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of
A Advance.
"A Borrowing" means a borrowing consisting of simultaneous
A Advances of the same Type made by each of the A Lenders pursuant
to Section 2.01.
"A Commitment" means, as to each A Lender, the amount set
forth opposite such A Lender's name on Schedule I-A hereto under
the caption A Commitment or, if such A Lender has entered into one
or more Assignment and Acceptances, the amount set forth for such A
Lender with respect thereto in the Register maintained by the Agent
pursuant to Section 10.07 hereof, in each case as such amount may
be reduced or increased pursuant to Section 2.05.
"A Commitment Increase" has the meaning specified in Section
2.05(b).
"A Lender" means any Lender having an A Commitment or to
which A Advances are owed.
"Advance" means an A Advance or a B Advance, and "Advances"
means the A Advances and the B Advances.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by, or is under
common control with, such Person.
"Alternative Currency" means any lawful currency other than
Dollars which is freely transferable and convertible into Dollars
and which the Issuing Bank can obtain in the ordinary course of its
business.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance, and such Lender's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance and, in the case of a B Advance,
the office of such Lender notified by such Lender to the Agent as
its Applicable Lending Office with respect to such B Advance.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and
accepted by the Agent, in substantially the form of Exhibit B
hereto.
"B Advance" means an advance by an A Lender to the Borrower
as part of a B Borrowing resulting from the auction bidding
procedure described in Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous
B Advances from each of the A Lenders whose offer to make one or
more B Advances as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section
2.03.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time which rate
per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) 1/2% per annum above the latest three-week
moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of
major United States money market banks, such three-week
moving average being determined weekly on each Monday (or, if
any such date is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the
previous Friday by the Agent on the basis of such rates
reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by the Agent from three
New York certificate of deposit dealers of recognized
standing selected by the Agent, in either case adjusted to
the nearest 1/4 of one percent or, if there is no nearest 1/4
of one percent, to the next higher 1/4 of one percent; and
(c) 1/2% per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears interest
as provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City or San
Francisco, California and a day on which wire transfers may be
effectuated among member banks of the Federal Reserve System
through use of the fedwire funds transfer system and (i) if the
applicable Business Day relates to any Eurodollar Rate Advances, a
day on which dealings are carried on in the London interbank market
and (ii) if the applicable Business Day relates to any Letter of
Credit denominated in an Alternative Currency, a day on which
commercial banks are open for business in the country of issue of
such Alternative Currency and on which dealings in such Alternative
Currency are carried on by such commercial banks in such country of
issue (if such Alternative Currency is other than the Euro).
"Capital Lease" of any Person means any lease of any
property (whether real, personal or mixed) by such Person as
lessee, which lease should, in accordance with generally accepted
accounting principles, be required to be accounted for as a capital
lease on the balance sheet of such Person.
"Cash Equivalent" means (i) direct obligations issued by or
unconditionally guaranteed by the United States government or
issued by any agency thereof and supported by the full faith and
credit of the United States government, in each case maturing
within twelve months from the date of acquisition thereof,
(ii) commercial paper maturing not more than 270 days from the date
of acquisition thereof issued by a United States corporation and,
at the time of acquisition, having the highest ratings obtainable
from both Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and Moody's Investors Service, Inc.,
(iii) Dollar denominated investments in money market funds and
(iv) certificates of deposit, banker's acceptances, and secured
repurchase agreements, in each case maturing within one year from
the date of acquisition, and issued by or entered into with any
banking institution having a combined capital and surplus of not
less than $500,000,000.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9601 et seq.), and any regulations promulgated thereunder.
"Change of Control" means the occurrence, after the date of
this Agreement, of (i) any Person or two or more Persons acting in
concert acquiring beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Borrower (or other securities
convertible into such securities) representing 50% or more of the
combined voting power of all securities of the Borrower entitled to
vote in the election of directors; or (ii) during any period of up
to 24 consecutive months, commencing before or after the date of
this Agreement, individuals who at the beginning of such 24-month
period were directors of the Borrower ceasing for any reason to
constitute a majority of the Board of Directors of the Borrower
unless the Persons replacing such individuals were nominated by the
Board of Directors of the Borrower; or (iii) any Person or two or
more Persons acting in concert acquiring by contract or otherwise,
or entering into a contract or arrangement which upon consummation
will result in its or their acquisition of, control over securities
of the Borrower (or other securities convertible into such
securities) representing 50% or more of the combined voting power
of all securities of the Borrower entitled to vote in the election
of directors; provided, that, the Person or group of Persons
referred to in clauses (i) and (iii) of this definition of Change
of Control shall not include any Person listed on Schedule III
hereto or any group of Persons in which one or more of the Persons
listed on Schedule III are members.
"Consolidated" and any derivative thereof each means, with
reference to the accounts or financial reports of any Person, the
consolidated accounts or financial reports of such Person and each
Subsidiary of such Person determined in accordance with generally
accepted accounting principles, including principles of
consolidation, consistent with those applied in the preparation of
the Consolidated financial statements of the Borrower referred to
in Section 6.01(e).
"Convert", "Conversion" and "Converted" each refers to a
conversion of A Advances of one Type into A Advances of another
Type pursuant to Section 2.09 or 2.10.
"Debt" of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money or for the deferred
purchase price (excluding any deferred purchase price that
constitutes an account payable incurred in the ordinary course of
business) of property or services, (ii) all obligations of such
Person in connection with any agreement to purchase, redeem,
exchange, convert or otherwise acquire for value any capital stock
of such Person or to purchase, redeem or acquire for value any
warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, (iii) all obligations of such Person
evidenced by bonds, notes, debentures, convertible debentures or
other similar instruments, (iv) all indebtedness created or arising
under any conditional sale or other title retention agreement
(other than under any such agreement which constitutes or creates
an account payable incurred in the ordinary course of business)
with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in
the event of default, acceleration, or termination are limited to
repossession or sale of such property), (v) all Capital Lease
obligations of such Person, (vi) obligations under direct or
indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (v) above,
(vii) all Debt referred to in clause (i), (ii), (iii), (iv), (v) or
(vi) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any
lien, security interest or other charge or encumbrance upon or in
property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt and
(viii) all mandatorily redeemable preferred stock of such Person,
valued at the applicable redemption price, plus accrued and unpaid
dividends payable in respect of such redeemable preferred stock.
"Default" means an event which would constitute an Event of
Default but for the requirement that notice be given or time
elapse, or both.
"Dollars", "dollars" and the sign "$" each means lawful
money of the United States.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I-B hereto or in the
Assignment and Acceptance pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"EBITDA" means, for any period, Net Income plus, to the
extent deducted in determining such Net Income, the sum of (a)
Interest Expense, (b) income tax expense, (c) depreciation expense
and (d) amortization expense, all determined on a Consolidated
basis for the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, and
having Total Assets in excess of $10,000,000,000; (ii) a commercial
bank organized under the laws of any other country which is a
member of the OECD or has concluded special lending arrangements
with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such
country, and having Total Assets in excess of $10,000,000,000;
provided, that, such bank is acting through a branch or agency
located in the United States; (iii) the central bank of any country
which is a member of the OECD; (iv) any Lender or Affiliate of a
Lender; (v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership or other
entity) which is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its
business, and having Total Assets in excess of $10,000,000,000; and
(vi) any other Person mutually acceptable to the Borrower and the
Agent.
"Environmental Laws" means any and all laws, statutes,
ordinances, rules, regulations, judgments, orders, decrees,
permits, licenses, or other governmental restrictions or
requirements relating to the environment or any Hazardous
Substance.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) which is a member of a controlled group of which
the Borrower or any Subsidiary of the Borrower is a member or which
is under common control with the Borrower or any Subsidiary of the
Borrower within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurodollar
Lending Office" opposite its name on Schedule I-B hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or,
if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing, an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) of the rates per
annum at which deposits in Dollars are offered by the principal
office of each of the Reference Banks in London, England, to prime
banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in
an amount substantially equal to such Reference Bank's Eurodollar
Rate Advance comprising part of such A Borrowing and for a period
equal to such Interest Period. The Eurodollar Rate for the
Interest Period for each Eurodollar Rate Advance comprising part of
the same A Borrowing shall be determined by the Agent on the basis
of the applicable rates given to and received by the Agent from the
Reference Banks two Business Days prior to the first day of such
Interest Period, subject, however, to the provisions of Section
2.09.
"Eurodollar Rate Advance" means an A Advance which bears
interest as provided in Section 2.07(b).
"Eurodollar Rate Margin" means at any date of determination
0.175% per annum at all times from and after the date hereof.
"Eurodollar Rate Reserve Percentage" of any Lender for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than
one such percentage shall be so applicable, the daily average of
such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section
8.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by
it.
"Fiscal Quarter" means any quarter in any Fiscal Year, the
duration of such quarter being defined in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the Borrower's financial statements referred to in
Section 6.01(e).
"Fiscal Year" means a fiscal year of the Borrower and its
Subsidiaries.
"Five-Year Credit Agreement" means the Credit Agreement
dated as of July 1, 1997 among the Borrower, the financial
institutions party thereto as lenders, and CUSA, as agent for such
lenders, as the same may be amended, supplemented or otherwise
modified from time to time.
"Hazardous Substance" means (i) any hazardous substance or
toxic substance as such terms are presently defined or used in
section 101(14) of CERCLA (42 U.S.C. section 9601(14)),
in 33 U.S.C. section 1251 et.seq. (Clean Water Act), or 15 U.S.C.
section 2601 et.seq. (Toxic Substances Control Act) and (ii) as of
any date of determination, any additional substances or materials
which are hereafter incorporated in or added to the definition of
"hazardous substance" or "toxic substance" for purposes of CERCLA or any
other applicable law.
"Interest Expense" of any Person for any period means the
aggregate amount of interest or fees (other than agency fees
payable to the Agent, as such) paid, accrued or scheduled to be
paid or accrued in respect of any Debt (including the interest
portion of rentals under Capital Leases) and all but the principal
component of payments in respect of conditional sales, equipment
trust or other title retention agreements paid, accrued or
scheduled to be paid or accrued by such Person during such period,
determined in accordance with generally accepted accounting
principles.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period commencing on
the date of such Type of A Advance or the date of the Conversion of
any A Advance into such Type of an A Advance and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing
on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be 1, 2, 3 or 6 months in the case of a
Eurodollar Rate Advance, in each case as the Borrower may, upon
notice received by the Agent not later than 12:00 noon (New York
City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
which ends after the Revolver Termination Date;
(ii) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing shall
be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur
on the next succeeding Business Day, provided, in the case of
any Interest Period for a Eurodollar Rate Advance, that if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(iv) the Borrower may request in a Notice of
A Borrowing an Interest Period of 9 or 12 months for a
Eurodollar Rate Advance and the Interest Period for such
Eurodollar Rate Advance shall be 9 or 12 months, as requested
by the Borrower, if, and only if, the Agent determines a
Eurodollar Rate for the tenor of such Interest Period and the
Majority A Lenders do not notify the Agent pursuant to
Section 2.09(b) that the Eurodollar Rate for such Interest
Period will not adequately reflect the cost to such Majority
A Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period; if both of
the preceding conditions are not satisfied with respect to
such requested 9 or 12 month Interest Period, the duration of
the requested Interest Period shall be the alternative
specified in the Notice of A Borrowing, or, if no alternative
Interest Period is selected, 6 months.
"Issue" means, with respect to any Letter of Credit, either
to issue, or to extend the expiry of, or to renew, or to increase
the amount of, such Letter of Credit, and the term "Issued" or
"Issuance" shall have corresponding meanings.
"Issuing Bank" means Citibank or any Affiliate of Citibank
that may from time to time Issue Letters of Credit for the account
of the Borrower or for the account of any LC Subsidiary.
"LC Commitment" means, as to any LC Lender, the amount set
forth opposite such LC Lender's name on Schedule I-A hereto under
the caption "LC Commitment" or, if such LC Lender has entered
into one or more Assignment and Acceptances, the amount set forth
for such LC Lender with respect thereto in the Register maintained
by the Agent pursuant to Section 10.07 hereof, in each case as such
amount may be reduced or increased from time to time pursuant to
Section 3.09.
"LC Commitment Increase" has the meaning specified in
Section 3.09(b).
"LC Commitment Percentage" means, with respect to each
LC Lender, the percentage which the then existing LC Commitment of
such LC Lender is of the LC Commitments of all LC Lenders;
provided, however, that with respect to Letters of Credit which
expire after the LC Termination Date has occurred, the LC
Commitment Percentage of each LC Lender shall be the percentage
which such LC Lender's LC Commitment immediately prior to the LC
Termination Date is of the LC Commitment of all LC Lenders
immediately prior to the LC Termination Date.
"LC Lender" means any Lender that has an LC Commitment or
which, at the date of determination, has purchased (pursuant to
Section 3.04) a participation in a Letter of Credit.
"LC Subsidiary" means, as of the date hereof, the
Subsidiaries of the Borrower listed on Schedule V hereto and, after
the date hereof, any other Subsidiary of the Borrower that may from
time to time become a party hereto (with respect to Letters of
Credit only) and for whose account the Issuing Bank may from time
to time Issue Letters of Credit.
"LC Termination Date" means, subject to Section 3.11 hereof,
June 27, 2000, or the earlier date of termination in whole of the
LC Commitments pursuant to Section 3.09 or Section 8.01.
"Lenders" means the Lenders listed on the signature pages
hereof and each Eligible Assignee that shall become a party hereto
pursuant to Section 10.07.
"Letter of Credit" means a documentary letter of credit in
form satisfactory to the Issuing Bank, which is at any time Issued
by the Issuing Bank pursuant to Article III, in each case as
amended, supplemented or otherwise modified from time to time.
"Letter of Credit Liability" means, as of any date of
determination, all then existing liabilities of the Borrower and
the LC Subsidiaries to the Issuing Bank in respect of the Letters
of Credit Issued for the Borrower's account and for the account of
the LC Subsidiaries, whether such liability is contingent or fixed,
and shall, in each case, consist of the sum of (i) the aggregate
maximum amount (the determination of such maximum amount to assume
compliance with all conditions for drawing) then available to be
drawn under such Letters of Credit (including, without limitation,
amounts available under such Letters of Credit for which a draft
has been presented but not yet honored) and (ii) the aggregate
amount which has then been paid by, and not been reimbursed to, the
Issuing Bank under such Letters of Credit. For the purposes of
determining the Letter of Credit Liability, the face amount of
Letters of Credit outstanding in an Alternative Currency shall be
expressed as the equivalent of such Alternative Currency in
Dollars.
"Lien" means any assignment, chattel mortgage, pledge or
other security interest or any mortgage, deed of trust or other
lien, or other charge or encumbrance, upon property or rights
(including after-acquired property or rights), or any preferential
arrangement with respect to property or rights (including
after-acquired property or rights) which has the practical effect
of constituting a security interest or lien.
"Majority A Lenders" means, at any time, A Lenders owed at
least 66 2/3% of the then aggregate unpaid principal amount of the
A Advances held by A Lenders, or, if no such principal amount is
then outstanding, A Lenders having at least 66 2/3% of the
A Commitments.
"Majority Combined Lenders means the Lenders having at
least 66 2/3% of the aggregate "Credit Exposure." For the
purposes hereof, "Credit Exposure" of any Lender shall mean, at
any date of determination, the maximum dollar amount that such
Lender could be then required by the terms hereof (assuming all
conditions to Borrowings and Issuances were satisfied) to expend to
(i) purchase participations in Letters of Credit pursuant to
Section 3.04 hereof (including any amounts so expended and not
reimbursed at the date of determination) and (ii) fund A Advances
(including any amounts so expended to fund A Advances outstanding
on the date of determination).
"Majority LC Lenders" means, at any time, LC Lenders which
have purchased participations in (pursuant to Section 3.04 hereof)
at least 66 2/3% of the Letters of Credit and Letter of Credit
Liability then outstanding, or if no Letters of Credit are then
outstanding, LC Lenders having at least 66 2/3% of the
LC Commitments.
"Margin Stock" has the meaning assigned to such term in
Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Material Adverse Effect" means a material adverse effect on
the financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of
the preceding five plan years made or accrued an obligation to make
contributions.
"Net Income" of any Person means, for any period, net income
before (i) extraordinary items, (ii) the results of discontinued
operations and (iii) the effect of any cumulative change in
accounting principles, determined in accordance with generally
accepted accounting principles.
"Non-Retail Assets" means property (tangible and intangible)
that is not used, sold or consumed in a Retail Business.
"Non-Retail Business" means, with respect to any Person,
that such Person is not engaged in the Retail Business.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a).
"Obligations" means all obligations of the Borrower and the
LC Subsidiaries now or hereafter existing under this Agreement,
whether for principal (including reimbursement for amounts drawn
under Letters of Credit), interest, fees, expenses, indemnification
or otherwise.
"OECD" means the Organization for Economic Cooperation and
Development.
"Original Agreement" has the meaning specified in
Preliminary Statement (1).
"Other Taxes" has the meaning specified in Section 4.02(b).
"Payment Office" means, for Dollars, the principal office of
the Issuing Bank in New York City, located on the date hereof at
399 Park Avenue, New York, New York 10043, and, for any Alternative
Currency, such office of the Issuing Bank as shall be from time to
time selected by the Issuing Bank and notified by the Issuing Bank
to the Borrower, the LC Subsidiaries and the LC Lenders.
"Permitted Lien" means:
(i) Liens for taxes, assessments or governmental charges
or levies to the extent not past due or to the extent contested, in
good faith, by appropriate proceedings and for which adequate
reserves have been established;
(ii) Liens imposed by law, such as materialman's,
mechanic's, carrier's, worker's, landlord's and repairman's Liens
and other similar Liens arising in the ordinary course of business
which relate to obligations which are not overdue for a period of
more than 30 days or which are being contested in good faith, by
appropriate proceedings and for which reserves required by
generally accepted accounting principles have been established;
(iii) pledges or deposits in the ordinary course of
business to secure nondelinquent obligations under worker's
compensation or unemployment laws or similar legislation or to
secure the performance of leases or contracts entered into in the
ordinary course of business or of public or nondelinquent statutory
obligations, bids, or appeal bonds;
(iv) Liens upon or in, and limited to, any property
acquired or held by the Borrower or any of its Subsidiaries to
secure the purchase price of such property or to secure
indebtedness incurred solely for the purpose of financing or
refinancing the acquisition of any such property to be subject to
such Liens, or Liens existing on any such property at the time of
acquisition;
(v) Liens upon any assets subject to a Capital Lease and
securing payment of the obligations arising under such Capital
Lease;
(vi) zoning restrictions, easements, licenses,
landlord's Liens or restrictions on the use of property which do
not materially impair the use of such property in the operation of
the business of the Borrower or any of its Subsidiaries;
(vii) Liens of the Borrower and its Subsidiaries not
described in the foregoing clauses (i) through (vi), existing of
the date hereof and listed on Schedule II hereto;
(viii) Liens not described in subclauses (i) through
(vii) above that relate to liabilities not in excess of $20,000,000
in the aggregate; and
(ix) extensions, renewals or replacements of Liens
described in subclauses (iv), (v), (vii) and (viii) for the same or
lesser amount; provided, that, no such extension, renewal or
replacement shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained by the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate for its employees and subject
to Title IV of ERISA.
"RCRA" means the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. section 6901 et seq.), and any regulations
promulgated thereunder.
"Reference Banks" means Citibank, N.A., HSBC Bank USA and
Bank of America National Trust and Savings Association.
"Responsible Officer" means, with respect to any
certificate, report or notice to be delivered or given hereunder,
unless the context otherwise requires, the president, chief
executive officer or chief financial officer of the Borrower or
other executive officer of the Borrower who in the normal
performance of his or her operational duties would have knowledge
of the subject matter relating to such certificate, report or
notice.
"Register" has the meaning specified in Section 10.07(c).
"Retail Assets" means property (tangible and intangible)
that is used, sold or consumed in a Retail Business.
"Retail Business" means, with respect to any Person, that
such Person is engaged in the business of manufacturing, producing,
supplying, distributing or selling apparel, home furnishings,
accessories, specialty foods and related products or goods.
"Revolver Termination Date" means, subject to Section 2.14
hereof, June 27, 2000 or the earlier date of termination in whole
of the A Commitments pursuant to Section 2.05 or 8.01.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, trust or other Person of which more than
50% of the outstanding capital stock (or similar property right in
the case of partnerships and trusts and other Persons) having
ordinary voting power to elect a majority of the board of directors
of such corporation (or similar governing body or Person with
respect to partnerships and trusts and other Persons) (irrespective
of whether or not at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon
the occurrence of any contingency) is at the time directly or
indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Taxes" has the meaning specified in Section 4.02(a).
"Total Assets" of any Person means all property, whether
real, personal, tangible, intangible or otherwise, which, in
accordance with generally accepted accounting principles, should be
included in determining total assets as shown on the assets portion
of a balance sheet of such Person.
"Type" refers to the distinction among Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UCP" has the meaning specified in Section 3.08.
SECTION 1.02 Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding".
SECTION 1.03 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in Section
6.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The A Advances. Each A Lender severally
agrees, on the terms and conditions hereinafter set forth, to make
A Advances to the Borrower from time to time on any Business Day during
the period from the date hereof until the Revolver Termination Date in an
aggregate amount not to exceed at any time outstanding such A Lender's
A Commitment, provided, that, the aggregate amount of the A Commitments
of the A Lenders shall be deemed used from time to time to the extent of
the aggregate amount of the B Advances then outstanding and such deemed
use of the aggregate amount of the A Commitments shall be applied to the
A Lenders ratably according to their respective A Commitments (such
deemed use of the aggregate amount of the A Commitments being a
"B Reduction"). Each A Borrowing shall be in an aggregate amount not
less than (i) $15,000,000, in the case of an A Borrowing consisting of
Eurodollar Rate Advances and (ii) $1,000,000, in the case of an
A Borrowing consisting of Base Rate Advances, or, in each case, in
integral multiples of $1,000,000 in excess thereof and shall consist of
A Advances of the same Type made on the same day by the A Lenders ratably
according to their respective A Commitments. Within the limits of each
A Lender's A Commitment, the Borrower may from time to time borrow,
prepay pursuant to Section 2.11(b) and reborrow under this Section 2.01.
SECTION 2.02 Making the A Advances. (a) Each A Borrowing
shall be made on notice given not later than (i) 12:00 noon (New York
City time) on the third Business Day prior to the date of the proposed
A Borrowing, if such proposed A Borrowing consists of Eurodollar Rate
Advances and (ii) 10:00 A.M. (New York City time) on the day of such
proposed A Borrowing, if such proposed A Borrowing consists of Base Rate
Advances, by the Borrower to the Agent, which shall give to each A Lender
prompt notice thereof by telecopier. Each such notice of an A Borrowing
(a "Notice of A Borrowing") shall be by telecopier or telephone (and if
by telephone, confirmed immediately in writing), in substantially the
form of Exhibit A-1 hereto, specifying therein the requested (i) date of
such A Borrowing, (ii) Type of A Advances comprising such A Borrowing,
(iii) aggregate amount of such A Borrowing and (iv) in the case of an
A Borrowing comprised of Eurodollar Rate Advances, initial Interest
Period for each such A Advance. Each A Lender shall, before 12:00 noon
(New York City time) on the date of such A Borrowing, make available for
the account of its Applicable Lending Office to the Agent at its address
referred to in Section 10.02, in same day funds, such A Lender's ratable
portion of such A Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article V,
the Agent will make such funds available to the Borrower at the Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for
any A Borrowing if the aggregate amount of such A Borrowing is less than
$1,000,000 multiplied by the number of A Lenders.
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the
related Notice of A Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each A Lender against any
loss, cost or expense incurred by such A Lender as a result of any
failure to fulfill on or before the date specified in such Notice of
A Borrowing for such A Borrowing the applicable conditions set forth in
Article V, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
A Lender to fund the A Advance to be made by such A Lender as part of
such A Borrowing when such A Advance, as a result of such failure, is not
made on such date.
(d) Unless the Agent shall have received notice from an
A Lender (i) in the case of any A Borrowing consisting of (A) Eurodollar
Rate Advances or (B) Base Rate Advances for which the Notice of A
Borrowing is given other than on the date thereof, prior to the date of
such A Borrowing or (ii) in the case of any A Borrowing consisting of
Base Rate Advances for which the Notice of A Borrowing is given on the
date thereof, prior to the time at which such A Lender is required to
fund such A Borrowing, which notice shall in either case state that such
A Lender will not make available to the Agent such A Lender's ratable
portion of such A Borrowing, the Agent may assume that such A Lender has
made such portion available to the Agent on the date of such A Borrowing
in accordance with subsection (a) of this Section 2.02 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such A Lender
shall not have so made such ratable portion available to the Agent, such
A Lender and the Borrower severally agree to repay to the Agent forthwith
on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Agent at (x) in the case of
the Borrower, the interest rate applicable at the time to A Advances
comprising such A Borrowing and (y) in the case of such A Lender, the
Federal Funds Rate. If such A Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such
A Lender's A Advance as part of such A Borrowing for purposes of this
Agreement.
(e) The failure of any A Lender to make the A Advance to
be made by it as part of any A Borrowing shall not relieve any other
A Lender of its obligation, if any, hereunder to make its A Advance on
the date of such A Borrowing, but no A Lender shall be responsible for
the failure of any other A Lender to make the A Advance to be made by
such other A Lender on the date of any A Borrowing.
(f) The Borrower shall, if requested by any A Lender,
execute and deliver a promissory note, in substantially the form of
Exhibit E-1 hereto, payable to the order of such A Lender in an original
principal amount equal to such A Lender's A Commitment, duly executed by
the Borrower.
SECTION 2.03 The B Advances. (a) Each A Lender severally
agrees that the Borrower may make B Borrowings under this Section 2.03
from time to time on any Business Day during the period from the date
hereof until the date occurring 7 days prior to the Revolver Termination
Date in the manner set forth below; provided, that, following the making
of each B Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the A Commitments of
the A Lenders (computed without regard to any B Reduction).
(i) The Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Agent (or to each A Lender if the
Borrower is conducting the auction for B Advances pursuant to
subsection (g) of this Section 2.03), by telecopier, a notice of a
B Borrowing (a "Notice of B Borrowing"), in substantially the
form of Exhibit A-2 hereto, specifying the date and aggregate
amount of the proposed B Borrowing, the maturity date for repayment
of each B Advance to be made as part of such B Borrowing (which
maturity date may not be earlier than the date occurring 7 days
after the date of such B Borrowing or later than the Revolver
Termination Date), the interest payment date or dates relating
thereto, and any other terms to be applicable to such B Borrowing,
not later than 3:00 P.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed B Borrowing, if the
Borrower shall specify in the Notice of B Borrowing that the rates
of interest to be offered by the A Lenders shall be fixed rates per
annum and (B) at least four Business Days prior to the date of the
proposed B Borrowing, if the Borrower shall instead specify in the
Notice of B Borrowing the basis to be used by the A Lenders in
determining the rates of interest to be offered by them. If the
Agent is conducting the auction for B Advances, it shall in turn
promptly notify each A Lender of each request for a B Borrowing
received by it from the Borrower by sending such A Lender a copy of
the related Notice of B Borrowing.
(ii) Each A Lender may, if, in its sole discretion,
it elects to do so, irrevocably offer to make one or more
B Advances to the Borrower as part of such proposed B Borrowing at
a rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent (which shall give prompt notice
thereof to the Borrower) or the Borrower (if it is conducting the
auction for B Advances pursuant to subsection (g) of this Section
2.03), before 10:30 A.M. (New York City time) (A) on the date of
such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (A) of paragraph (i) above and (B)
three Business Days before the date of such proposed B Borrowing,
in the case of a Notice of B Borrowing delivered pursuant to clause
(B) of paragraph (i) above, of the minimum amount and maximum
amount of each B Advance which such A Lender would be willing to
make as part of such proposed B Borrowing (which amounts may,
subject to the proviso to the first sentence of this Section
2.03(a), exceed such A Lender's A Commitment), the rate or rates of
interest therefor and such A Lender's Applicable Lending Office
with respect to such B Advance; provided, that, if the Agent in its
capacity as an A Lender shall, in its sole discretion, elect to
make any such offer and the Agent is conducting the auction for
B Advances, it shall notify the Borrower of such offer before
10:00 A.M. (New York City time) on the date on which notice of such
election is to be given to the Agent by the other A Lenders. If
any A Lender shall elect not to make such an offer, such A Lender
shall so notify the Agent, or the Borrower (if it is conducting the
auction for the B Advances pursuant to subsection (g) of this
Section 2.03), before 10:30 A.M. (New York City time) on the date
on which notice of such election is to be given to the Agent or the
Borrower (if it is conducting the auction for the B Advances
pursuant to subsection (g) of this Section 2.03) by the other
A Lenders, and such A Lender shall not be obligated to, and shall
not, make any B Advance as part of such B Borrowing; provided,
that, the failure by any A Lender to give such notice shall not
cause such A Lender to be obligated to make any B Advance as part
of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (A) before
12:00 noon (New York City time) on the date of such proposed
B Borrowing, in the case of a Notice of B Borrowing delivered
pursuant to clause (A) of paragraph (i) above and (B) before
1:00 P.M. (New York City time) three Business Days before the date
of such proposed B Borrowing, in the case of a Notice of
B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, either:
(x) cancel such B Borrowing by giving the Agent (or
each A Lender if the Borrower is conducting the auction for
the B Advances pursuant to subsection (g) of this
Section 2.03) notice to that effect; or
(y) accept one or more of the offers made by any
A Lender or A Lenders pursuant to paragraph (ii) above, in
its sole discretion, by giving notice to the Agent (or each
A Lender, if the Borrower is conducting the auction for
B Advances pursuant to subsection (g) of this Section 2.03)
of the amount of each B Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to the Borrower by the
Agent on behalf of such A Lender (or by each A Lender, if the
Borrower is conducting the auction for B Advances pursuant to
subsection (g) of this Section 2.03) for such B Advance
pursuant to paragraph (ii) above) to be made by each A Lender
as part of such B Borrowing, and reject any remaining offers
made by A Lenders pursuant to paragraph (ii) above by giving
the Agent (or each A Lender, if the Borrower is conducting
the auction for B Advances pursuant to subsection (g) of this
Section 2.03) notice to that effect.
(iv) If the Borrower notifies the Agent that such
B Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the A Lenders, and such
B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any A Lender or A Lenders pursuant to paragraph (iii)(y)
above, the Agent, if it is conducting the auction for the
B Advances, or the Borrower, if it is conducting the auction for
the B Advances pursuant to subsection (g) of this Section 2.03,
shall promptly notify (A) each A Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount
of such B Borrowing, of the lowest and highest interest rates
offered to the Borrower by the A Lenders in connection with such B
Borrowing and whether or not any offer or offers made by such
A Lender pursuant to paragraph (ii) above have been accepted by the
Borrower and (B) each A Lender that is to make a B Advance as part
of such B Borrowing, of the amount of each B Advance to be made by
such A Lender as part of such B Borrowing. If the Borrower is
conducting the auction for the B Advances pursuant to subsection
(g) of this Section 2.03, it shall concurrently with the notices
given by it to the A Lenders pursuant to the previous sentence,
provide a copy of all such notices to the Agent. The Agent shall
in turn notify each A Lender that is to make a B Advance as part of
such B Borrowing, upon receipt, that the Agent has received forms
of documents appearing to fulfill the applicable conditions set
forth in Article V. Each A Lender that is to make a B Advance as
part of such B Borrowing shall, before 2:00 P.M. (New York City
time) on the date of such B Borrowing specified in the notice
received from the Agent (or from the Borrower if it is conducting
the auction for B Advances pursuant to subsection (g) of this
Section 2.03) pursuant to clause (A) above or any later time when
such A Lender shall have received notice from the Agent pursuant to
the preceding sentence, make available (i) if the Agent is
conducting the auction for B Advances, to the Agent for the account
of its Applicable Lending Office at its address referred to in
Section 10.02 such A Lender's portion of such B Borrowing, in same
day funds or (ii) if the Borrower is conducting the auction for
B Advances pursuant subsection (g) of this Section 2.03, to the
Borrower at the account designated by it, such A Lender's portion
of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article V, and after receipt by
the Agent of such funds (if the Agent conducted the auction
relating to such B Borrowing), the Agent will make such funds
available to the Borrower at the Agent's aforesaid address.
Promptly after each B Borrowing the Agent will notify each A Lender
of the amount of the B Borrowing, the consequent B Reduction and
the dates upon which such B Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount not
less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each B Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the
first sentence of subsection (a) above. The Borrower may not accept
offers for B Advances in excess of the aggregate amount specified in its
Notice of B Borrowing given with respect to each proposed B Borrowing.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and
reborrow under this Section 2.03. The Borrower may not make more than
one B Borrowing on any Business Day.
(d) If the Agent conducted the applicable auction relating
to the B Advance to be repaid, the Borrower shall repay to the Agent for
the account of each A Lender which has made a B Advance on the maturity
date of each B Advance (such maturity date being that specified by the
A Lender for repayment of such B Advance in the related offer delivered
pursuant to subsection (a)(ii) above), the then unpaid principal amount
of such B Advance. If the Borrower conducted the applicable auction
relating to the B Advance to be repaid, the Borrower shall repay directly
to each A Lender that made a B Advance on the maturity date of each
B Advance (such maturity date being that specified by the A Lender for
repayment of such B Advance in the related offer delivered pursuant to
subsection (a)(ii) above), the then unpaid principal amount of such
B Advance at the account designated by such A Lender to the Borrower. The
Borrower shall have no right to prepay any principal amount of any
B Advance unless, and then only on the terms, specified for such
B Advance in the offer delivered pursuant to subsection (a)(ii) above.
(e) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the rate of
interest for such B Advance specified by the A Lender making such
B Advance in its offer with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by the Borrower in its Notice of B Borrowing with respect
thereto delivered pursuant to subsection (a)(i) above. Such interest
shall be paid directly to the A Lender that made the B Advance at the
account designated by it to the Borrower, if the Borrower conducted the
applicable auction relating to the B Advance on which interest is to be
paid, and to the Agent for the account of the Applicable Lending Office
of each A Lender that made a B Advance, if the Agent conducted the
auction relating to the B Advance on which interest is to be paid.
(f) The indebtedness of the Borrower to an A Lender
resulting from each B Advance made to the Borrower as part of a
B Borrowing shall be evidenced by such A Lender's loan account referred
to in Section 4.04; provided, however, that upon the request of such A
Lender, the Borrower shall execute and deliver to such A Lender a
promissory note, in substantially the form of Exhibit E-2 hereto, in the
face amount of the B Advance made by such A Lender as part of a B
Borrowing.
(g) If the Borrower so elects, it may conduct, from time
to time, auctions for B Advances in accordance with the foregoing
provisions. The Borrower shall promptly notify the Agent of each such
auction for B Advances that it conducts hereunder and the amount, term
and Lender for each such B Advance and each payment made by the Borrower
in respect thereof.
SECTION 2.04 Fees.
(a) Facility Fee. The Borrower agrees to pay to the Agent
for the account of each A Lender a facility fee, accruing at the rate of
0.05% from and after the date hereof, on the amount of such A Lender's
A Commitment (computed without giving effect to any B Reduction or any
other usage of the A Commitment of such A Lender), payable quarterly in
arrears on the last day of each January, April, July and October and on
the Revolver Termination Date.
(b) Utilization Fee. The Borrower agrees to pay to the
Agent for the account of each A Lender a utilization fee, accruing,
during all periods from and after the date hereof when the aggregate
amount of outstanding A Advances made by such A Lender exceeds 50% of
such A Lender's A Commitment (without regard to any usage thereof), at
the rate of 0.05% per annum on the aggregate amount of such A Advances
outstanding from time to time during such periods, payable quarterly in
arrears on the last day of each January, April, July and October and on
the Revolver Termination Date.
(c) Other Fees. The Borrower hereby agrees to pay the fees
and charges referred to in that certain letter agreement, dated as of the
date hereof, among the Borrower, the Issuing Bank and the Agent.
SECTION 2.05 Reduction and Increase of the A Commitments.
(a) The Borrower shall have the right, upon at least three Business
Days notice to the Agent, to irrevocably terminate in whole or reduce
ratably in part the unused portions of the respective A Commitments of
the A Lenders, provided, that, the aggregate amount of the A Commitments
of the A Lenders shall not be reduced to an amount which is less than the
aggregate principal amount of the B Advances then outstanding and
provided, further, that each partial reduction shall be in the aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(b) Not more frequently than once in any period of twelve
consecutive calendar months occurring after the date hereof, the Borrower
shall have the right prior to the Revolver Termination Date to increase
the amount of the A Commitments of one or more A Lenders (each such
increase being an "A Commitment Increase"), provided that such A
Lenders shall have consented to such A Commitment Increase (which consent
may be granted or withheld by any A Lender in its sole and absolute
discretion), on and subject to the following terms:
(i) The aggregate amount of all A Commitment
Increases and LC Commitment Increases shall not exceed $200,000,000
after the date hereof;
(ii) The aggregate amount of each A Commitment
Increase shall be in a minimum amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof;
(iii) Each A Commitment Increase shall increase the
aggregate amount of the A Commitments by the same amount;
(iv) No proposed A Commitment Increase shall occur
unless each of the following requirements in respect thereof shall
have been satisfied:
(A) The Agent shall have received from the
Borrower an irrevocable written notice (an "A Commitment
Increase Notice"), dated not earlier than 60 days before the
proposed A Commitment Increase Effective Date (as defined
below) therefor and not later than 30 days before such
proposed A Commitment Increase Effective Date, that (1)
specifies (x) the aggregate amount of the proposed A
Commitment Increase, (y) the A Lenders whose A Commitments
are to be increased by the proposed A Commitment Increase and
the amount by which each such A Lender's A Commitment is to
be so increased and (z) the date (the "A Commitment Increase
Effective Date") on which the proposed A Commitment Increase
shall become effective, and (2) has been signed by each A
Lender whose A Commitment is to be increased, evidencing the
consent of such A Lender to the proposed A Commitment
Increase; and
(B) On and as of the A Commitment Increase
Effective Date of the proposed A Commitment Increase (1) the
following statements shall be true (and the giving of the
applicable A Commitment Increase Notice shall constitute a
representation and warranty by the Borrower that on such A
Commitment Increase Effective Date such statements are true):
(x) The representations and warranties
contained in Section 6.01 are correct on and as
of such A Commitment Increase Effective Date
before and after giving effect to the proposed A
Commitment Increase, as though made on and as of
such date, and
(y) No event has occurred and is
continuing, or would result from such A
Commitment Increase, which constitutes an Event
of Default or Default; and
(2) the Agent shall have received such other approvals,
opinions or documents as the Agent may reasonably request;
(v) Promptly following its receipt of an A Commitment
Increase Notice in proper form, the Agent shall deliver copies
thereof to each A Lender. If, and only if, all of the terms,
conditions and requirements specified in paragraphs (i) through
(iv) are satisfied in respect of any proposed A Commitment on and
as of the proposed A Commitment Increase Effective Date thereof,
then, as of such A Commitment Increase Effective Date and from and
after such date, (1) the A Commitments of the A Lenders consenting
to such A Commitment Increase shall be increased by the respective
amounts specified in the A Commitment Increase Notice pertaining
thereto and (2) references herein to the amounts of the A Lenders'
respective A Commitments shall refer to respective amounts giving
effect to such A Commitment Increase;
(vi) It is understood that no A Lender shall have any
obligation whatsoever to agree to any request made by the Borrower
for an A Commitment Increase;
(vii) On each A Commitment Increase Effective Date,
each A Lender whose A Commitment has been increased (each such A
Lender being an "Increasing A Lender") shall, before 12:00 noon
(New York City time) on such A Commitment Increase Effective Date,
make available for the account of its Applicable Lending Office to
the Agent at the address specified in Section 10.02, in same day
funds, an amount equal to the excess of (A) such Increasing A
Lender's ratable portion of the A Borrowings then outstanding
(calculated based on its A Commitment as a percentage of the
aggregate A Commitments of the A Lenders outstanding after giving
effect to the relevant A Commitment Increase) over (B) the
aggregate principal amount of then outstanding A Advances made by
such Increasing A Lender; and
(viii) After the Agent's receipt of such funds from
each such Increasing A Lender, the Agent will promptly thereafter
cause to be distributed like funds to the other A Lenders for the
account of their respective Applicable Lending Offices in an amount
to each other A Lender such that the aggregate amount of the
outstanding A Advances owing to each A Lender after giving effect
to such distribution equals such A Lender's ratable portion of the
A Borrowings then outstanding (calculated based on its A Commitment
as a percentage of the aggregate A Commitments of the A Lenders
outstanding after giving effect to the relevant A Commitment
Increase). If the A Commitment Increase Effective Date shall occur
on a date that is not the last day of the Interest Period for all
Eurodollar Rate Advances then outstanding, (1) the Borrower shall
pay any amounts owing pursuant to Section 10.04(b) as a result of
the distributions to A Lenders under this Section 2.05(b) and (2)
for each A Borrowing comprised of Eurodollar Rate Advances, the
respective A Advances made by the Increasing A Lenders pursuant to
this Section 2.05(b) in respect of such A Borrowing shall be Base
Rate Advances until the last day of the then existing Interest
Period for such A Borrowing.
SECTION 2.06 Repayment of A Advances. The Borrower shall
repay in full the principal amount of each A Advance owing to each
A Lender, together with accrued interest and fees thereon, on the
Revolver Termination Date.
SECTION 2.07 Interest on A Advances. The Borrower shall
pay interest on the unpaid principal amount of each A Advance made by
each A Lender from the date of such A Advance until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base
Rate Advance, a rate per annum equal at all times to the Base Rate
in effect from time to time, payable quarterly on the last day of
each April, July, October, and January and on the date such Base
Rate Advance shall be Converted or paid in full; provided, that,
any amount of principal which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest,
from the date on which such amount is due until such amount is paid
in full, payable on demand, at a rate per annum equal at all times
to 2% per annum above the Base Rate in effect from time to time.
(b) Eurodollar Rate Advances. If such A Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Eurodollar Rate
Margin, payable on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on
each day which occurs during such Interest Period every three
months from the first day of such Interest Period; provided, that,
any amount of principal which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest,
from the date on which such amount is due until such amount is paid
in full, payable on demand, at a rate per annum equal at all times
to (x) after the expiration of the Interest Period related to such
principal amount, 2% per annum above the Base Rate in effect from
time to time and (y) prior to the expiration of the Interest Period
related to such principal amount, 2% per annum above the rate per
annum required to be paid on such A Advance immediately prior to
the date on which such principal amount became due.
SECTION 2.08 Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to each A Lender, so long as such
A Lender shall be required under regulations of the Board of Governors of
the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such A Lender, from the date of such A Advance
until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such A Advance from (ii) the
rate obtained by dividing such Eurodollar Rate by a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage of such A Lender for
such Interest Period, payable on each date on which interest is payable
on such A Advance. Such additional interest shall be determined by such
A Lender and notified to the Borrower through the Agent.
SECTION 2.09 Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information for the
purpose of determining the Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent
for the purpose of determining such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. The Agent shall give prompt notice to
the Borrower and the A Lenders of the applicable interest rate determined
by the Agent for purposes of Section 2.07(a) or (b), and the applicable
rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.07(b).
(b) If, with respect to any Eurodollar Rate Advances, the
Majority A Lenders notify the Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to
such Majority A Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances for such Interest Period, the Agent
shall forthwith so notify the Borrower and the A Lenders, whereupon:
(i) each outstanding Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the A Lenders to make,
or to Convert A Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the
A Lenders that the circumstances causing such suspension no longer
exist.
(c) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" in
Section 1.01, the Agent will forthwith so notify the Borrower and the
A Lenders and such Advances will automatically, on the last day of the
then existing Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of A Advances comprising any A Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $1,000,000 multiplied by
the number of A Lenders, such A Advances shall, if they are A Advances of
a Type other than Base Rate Advances, automatically Convert into Base
Rate Advances, and on and after such date the right of the Borrower to
Convert such A Advances into A Advances of a Type other than Base Rate
Advances shall terminate; provided, however, that if and so long as each
such A Advance shall be of the same Type and have the same Interest
Period as A Advances comprising another A Borrowing or other
A Borrowings, and the aggregate unpaid principal amount of all such
A Advances shall equal or exceed $1,000,000 multiplied by the number of
A Lenders, the Borrower shall have the right to continue all such
A Advances as, or to Convert all such A Advances into, A Advances of such
Type having such Interest Period.
(e) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and
the A Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) each such A Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such A Advance is then a Base Rate
Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the A Lenders to make, or
to Convert A Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.10 Voluntary Conversion of A Advances. The
Borrower may on any Business Day, upon notice given to the Agent not
later than 12:00 noon (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.09 and 2.13, Convert all A Advances of one Type
comprising the same A Borrowing into A Advances of another Type;
provided, however, that any Conversion of any Eurodollar Rate Advances
into A Advances of another Type shall be made on, and only on, the last
day of an Interest Period for such Eurodollar Rate Advances. Each such
notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the A Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances,
the duration of the Interest Period for each such A Advance.
SECTION 2.11 No Prepayments of A Advances. (a) The
Borrower shall have no right to prepay any principal amount of any
A Advances other than as provided in subsection (b) below or Section
2.14.
(b) The Borrower may, upon at least (i) two Business
Days, in the case of Eurodollar Rate Advances and (ii) same Business
Days, in the case of Base Rate Advances, notice to the Agent (to be
received by the Agent prior to 12:00 noon (New York City time)) stating
the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding
principal amounts of the A Advances comprising part of the same
A Borrowing in whole or ratably in part, together with accrued interest
to the date of such prepayment on the principal amount prepaid; provided,
however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $15,000,000 if made with respect to
Eurodollar Rate Advances, or $1,000,000, if made with respect to Base
Rate Advances, and in each case in $1,000,000 integral multiples in
excess thereof and (y) in the case of any such prepayment of a Eurodollar
Rate Advance, the Borrower shall be obligated to reimburse the A Lenders
in respect thereof pursuant to Section 10.04(b).
SECTION 2.12 Increased Costs. (a) If, due to either
(i) the introduction of or any change at any time after the date of this
Agreement (other than any change by way of imposition or increase of
reserve requirements in the case of Eurodollar Rate Advances, included in
the Eurodollar Rate Reserve Percentage) in or in the interpretation of
any law or regulation or (ii) the compliance after the date of this
Agreement with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any A Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances, then the
Borrower shall from time to time, upon demand by such A Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of
such A Lender additional amounts sufficient to compensate such A Lender
for such increased cost; provided, that, the Borrower shall have no
obligation to reimburse any A Lender for increased costs incurred more
than 60 days prior to the date of such demand. A certificate as to the
amount of such increased cost setting forth the basis for the calculation
of such increased costs, submitted to the Borrower and the Agent by such
A Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If, at any time after the date of this Agreement, any
A Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by
such A Lender or any corporation controlling such A Lender and that the
amount of such capital is increased by or based upon the existence of
such A Lender's commitment to lend hereunder and other commitments of
this type, then, upon demand by such A Lender (with a copy of such demand
to the Agent), the Borrower shall immediately pay to the Agent for the
account of such A Lender, from time to time as specified by such
A Lender, additional amounts sufficient to compensate such A Lender or
such corporation in the light of such circumstances, to the extent that
such A Lender reasonably determines such increase in capital to be
allocable to the existence of such A Lender's commitment to lend
hereunder; provided, that, the Borrower shall have no obligation to pay
such compensatory amounts that relate to an actual increase in the
capital of such A Lender undertaken by such A Lender more than 60 days
prior to the date of such demand. A certificate as to such amounts
submitted to the Borrower and the Agent by such A Lender and setting
forth the basis for the calculation of such amount shall be conclusive
and binding for all purposes, absent manifest error.
(c) Without affecting its rights under Sections 2.12(a) or
2.12(b) or any other provision of this Agreement, each A Lender agrees
that if there is any increase in any cost to or reduction in any amount
receivable by such A Lender with respect to which the Borrower would be
obligated to compensate such A Lender pursuant to Sections 2.12(a) or
2.12(b), such A Lender shall use reasonable efforts to select an
alternative Applicable Lending Office which would not result in any such
increase in any cost to or reduction in any amount receivable by such
A Lender; provided, however, that no A Lender shall be obligated to
select an alternative Applicable Lending Office if such A Lender
determines that (i) as a result of such selection such A Lender would be
in violation of any applicable law, regulation, treaty, or guideline, or
would incur additional costs or expenses or (ii) such selection would be
inadvisable for regulatory reasons or inconsistent with the interests of
such A Lender.
(d) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this Section 2.12 shall survive the payment in
full (after the Revolver Termination Date) of all Obligations.
SECTION 2.13 Illegality. (a) Notwithstanding any other
provision of this Agreement, if any A Lender shall notify the Agent that
the introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful or impossible, or any central bank or
other governmental authority asserts that it is unlawful, for any
A Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) the obligation of the A Lenders
to make, or to Convert A Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the A Lenders
that the circumstances causing such suspension no longer exist and (ii)
the Borrower shall forthwith prepay in full all Eurodollar Rate Advances
of all A Lenders then outstanding, together with interest accrued
thereon, unless the Borrower, within five Business Days of notice from
the Agent, Converts all Eurodollar Rate Advances of all A Lenders then
outstanding into A Advances of another Type in accordance with Section
2.10.
(b) Without affecting its rights under Section 2.13(a) or
under any other provision of this Agreement, each A Lender agrees that if
it becomes unlawful or impossible for such A Lender to make, maintain or
fund its Eurodollar Rate Advances as contemplated by this Agreement, such
A Lender shall use reasonable efforts to select an alternative Applicable
Lending Office from which such A Lender may maintain and give effect to
its obligations under this Agreement with respect to making, funding and
maintaining such Eurodollar Rate Advances; provided, however, that no
A Lender shall be obligated to select an alternative Applicable Lending
Office if such A Lender determines that (i) as a result of such selection
such A Lender would be in violation of any applicable law, regulation, or
treaty, or would incur additional costs or expenses or (ii) such
selection would be inadvisable for regulatory reasons or inconsistent
with the interests of such A Lender.
SECTION 2.14 Extension of Revolver Termination Date. At
least 30 but not more than 45 days prior to the next Revolver Termination
Date, the Borrower, by written notice to the Agent, may request that the
Revolver Termination Date be extended for a period of 364 days from its
then current scheduled expiration. The Agent shall promptly notify each
A Lender of such request, and each A Lender shall in turn, within 20 days
prior to such Revolver Termination Date, notify the Borrower and the
Agent in writing regarding whether such A Lender will consent to such
extension. If, and only if, (i) the Majority A Lenders consent in
writing to such extension prior to the tenth day preceding such Revolver
Termination Date and (ii) the Majority LC Lenders and the Issuing Bank
consent to an extension of the LC Termination Date pursuant to Section
3.11, the Revolver Termination Date shall be so extended for such 364-day
period and references herein to the "Revolver Termination Date" shall
refer to such "Revolver Termination Date" as so extended. If any
A Lender shall fail to deliver such notice to the Borrower and the Agent
as provided above (each such A Lender being a "Declining A Lender"),
such Declining A Lender shall be deemed not to have consented to any
requested extension, such Declining A Lender's A Commitment shall
terminate on the scheduled Revolver Termination Date and on such
scheduled Revolver Termination Date, the Borrower shall repay in full the
principal amount of A Advances owing to such Declining A Lender, together
with accrued interest thereon to the date of payment of such principal
amount, all fees payable to such Declining A Lender and all other amounts
payable to such Declining A Lender under this Agreement (including, but
not limited to, any increased costs or other additional amounts owing
under Section 2.12, any indemnification for Taxes or Other Taxes under
Section 4.02, and any amounts which may be required to be paid by the
Borrower pursuant to Section 10.04(b)). It is understood that no A
Lender shall have any obligation whatsoever to agree to any request made
by the Borrower for an extension of the Revolver Termination Date.
ARTICLE III
AMOUNT AND TERMS OF LETTERS OF
CREDIT AND PARTICIPATIONS THEREIN
SECTION 3.01 Letters of Credit. The Issuing Bank agrees,
on the terms and conditions hereinafter set forth, to Issue for the
account of the Borrower or any LC Subsidiary, one or more Letters of
Credit from time to time during the period from the date of this
Agreement until the LC Termination Date in an aggregate undrawn amount
not to exceed at any time the LC Commitments of the LC Lenders in effect
at such time (inclusive of the Dollar equivalent of Letters of Credit
Issued in an Alternative Currency), each such Letter of Credit upon its
Issuance to expire on or before the date which occurs one year from the
date of its Issuance; provided, however, that the Issuing Bank shall not
be obligated to, and shall not, Issue any Letter of Credit if:
(i) after giving effect to the Issuance of such Letter of
Credit, the then outstanding aggregate amount of all Letter of
Credit Liability shall exceed the total of the LC Commitments of
the LC Lenders;
(ii) the Agent or the Majority LC Lenders shall have
notified the Issuing Bank and the Borrower that no further Letters
of Credit are to be Issued by the Issuing Bank due to failure to
meet any of the applicable conditions set forth in Article V, and
such notice has not been withdrawn; or
(iii) after giving effect to the Issuance of any Letter
of Credit denominated in an Alternative Currency, the then
outstanding aggregate amount of all Letter of Credit Liability with
respect to all Letters of Credit denominated in an Alternative
Currency equals or exceeds (on a Dollar equivalent basis)
$75,000,000.
Within the limits of the obligations of the Issuing Bank set forth above,
the Borrower and each LC Subsidiary may request the Issuing Bank to Issue
one or more Letters of Credit, reimburse the Issuing Bank for payments
made thereunder pursuant to Section 3.03(a) and request the Issuing Bank
to Issue one or more additional Letters of Credit under this
Section 3.01.
SECTION 3.02 Issuing the Letters of Credit. Each Letter of
Credit shall be Issued on notice from the Borrower or any LC Subsidiary,
as the case may be, to the Issuing Bank as provided in the application
and agreement governing such Letter of Credit specifying the date,
amount, currency, expiry and beneficiary thereof, accompanied by such
documents as the Issuing Bank may specify to the Borrower or
LC Subsidiary, as the case may be, in form and substance satisfactory to
the Issuing Bank. On the date specified by the Borrower or
LC Subsidiary, as the case may be, in such notice and upon fulfillment of
the applicable conditions set forth in Section 3.01, the Issuing Bank
will Issue such Letter of Credit and shall promptly notify the Agent
thereof.
SECTION 3.03 Reimbursement Obligations. (a) The Borrower
or the appropriate LC Subsidiary, as the case may be, shall:
(i) pay to the Issuing Bank an amount equal to, and in
reimbursement for, each amount which the Issuing Bank pays under
any Letter of Credit not later than the date which occurs one
Business Day after payment of such amount by the Issuing Bank under
such Letter of Credit; and
(ii) pay to the Issuing Bank interest on any amount
paid by the Issuing Bank under any Letter of Credit from the date
on which the Issuing Bank pays such amount under any Letter of
Credit until such amount is reimbursed in full to the Issuing Bank
pursuant to clause (i) above, payable on demand, at a fluctuating
rate per annum equal to the sum of the Base Rate in effect from
time to time plus 2% per annum.
(b) All amounts to be reimbursed to the Issuing Bank in
accordance with subsection (a) above may, subject to the limitations set
forth in Section 2.01 (inclusive of the minimum borrowing limitations),
be paid from the proceeds of A Advances or B Advances.
SECTION 3.04 Participations Purchased by the Lenders. (a)
On the date of Issuance of each Letter of Credit the Issuing Bank shall
be deemed irrevocably and unconditionally to have sold and transferred to
each LC Lender without recourse or warranty, and each LC Lender shall be
deemed to have irrevocably and unconditionally purchased and received
from the Issuing Bank, an undivided interest and participation, to the
extent of such Lender's LC Commitment Percentage in effect from time to
time, in such Letter of Credit and all Letter of Credit Liability
relating to such Letter of Credit and all documents securing,
guaranteeing, supporting, or otherwise benefitting the payment of such
Letter of Credit Liability. The Agent or the Issuing Bank will notify
each Lender promptly after the close of each calendar month of all
Letters of Credit then outstanding and of their respective dates of
Issue, outstanding amounts (on a Dollar equivalent basis) as at the end
of such month, currency, expiry dates and reference numbers.
(b) In the event that any reimbursement obligation under
Section 3.03(a) is not paid when due to the Issuing Bank with respect to
any Letter of Credit, the Issuing Bank shall promptly notify the
LC Lenders of the amount of such reimbursement obligation (on a Dollar
equivalent basis in the case of Letters of Credit denominated in an
Alternative Currency) and each LC Lender shall immediately pay to the
Issuing Bank, in lawful money of the United States and in same day funds,
an amount equal to such LC Lender's LC Commitment Percentage then in
effect of the amount of such unpaid reimbursement obligation with
interest at the Federal Funds Rate for each day after such notification
until such amount is paid to the Issuing Bank.
(c) Promptly after the Issuing Bank receives a payment
(including interest payments) on account of a reimbursement obligation
with respect to any Letter of Credit, the Issuing Bank shall promptly pay
to each LC Lender which funded its participation therein, in lawful money
of the United States, the Dollar equivalent of funds so received, in an
amount equal to such LC Lender's Commitment Percentage thereof.
(d) Upon the request of any LC Lender, the Agent shall
furnish, or cause the Issuing Bank to furnish, to such LC Lender copies
of any outstanding Letter of Credit and any application and agreement for
letter of credit as may be reasonably requested by such LC Lender.
(e) The obligation of each LC Lender to make payments under
subsection (b) above shall be unconditional and irrevocable and shall
remain in effect after the occurrence of the LC Termination Date with
respect to any Letter of Credit that was Issued by the Issuing Bank on
behalf of the Borrower or any LC Subsidiary on or before the LC
Termination Date and such payments shall be made under all circumstances,
including, without limitation, any of the circumstances referred to in
Section 3.06(b) other than in connection with circumstances involving any
willful misconduct or gross negligence of the Issuing Bank in Issuing a
Letter of Credit or in determining whether documents presented under a
Letter of Credit comply with the terms thereof.
(f) If any payment received on account of any reimbursement
obligation with respect to a Letter of Credit and distributed to an
LC Lender as a participant under Section 3.04(c) is thereafter recovered
from the Issuing Bank in connection with any bankruptcy or insolvency
proceeding relating to the Borrower or an LC Subsidiary, each LC Lender
which received such distribution shall, upon demand by the Issuing Bank,
repay to the Issuing Bank such LC Lender's ratable share of the amount so
recovered together with an amount equal to such LC Lender's ratable share
(according to the proportion of (i) the amount of such LC Lender's
required repayment to (ii) the total amount so recovered) of any interest
or other amount paid or payable by the Issuing Bank in respect of the
total amount so recovered.
SECTION 3.05 Letter of Credit Fees. (a) Facility Fee.
The Borrower hereby agrees to pay to the Issuing Bank for the account of
each LC Lender (in accordance with its LC Commitment Percentage) a letter
of credit facility fee, accruing at a rate of 0.05% per annum from and
after the date hereof, (i) on the total amount of LC Commitments from
time to time from and after such date (regardless of the actual or deemed
usage thereof) payable quarterly in arrears on the last day of each
January, April, July and October and on the LC Termination Date and (ii)
on the aggregate amount of Letter of Credit Liability under all Letters
of Credit that are outstanding beyond the LC Termination Date (regardless
of the actual or deemed usage thereof) payable in arrears on the last day
of each January, April, July and October and on the first day after the
LC Termination Date on which no Letters of Credit are outstanding.
(b) Issuing Bank Fees. The Borrower hereby agrees to pay
to the Issuing Bank the fees and charges referred to in that certain
letter agreement, dated as of the date hereof, among the Borrower, the
Issuing Bank and the Agent.
SECTION 3.06 Indemnification; Nature of the Issuing Bank's
Duties. (a) The Borrower agrees to indemnify and save harmless the
Agent, the Issuing Bank and each Lender from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) which the Agent, the
Issuing Bank or such Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the Issuance of any Letter of Credit or
(ii) any action or proceeding relating to a court order, injunction, or
other process or decree restraining or seeking to restrain the Issuing
Bank from paying any amount under any Letter of Credit; provided, that,
the Issuing Bank shall not be indemnified for any of the foregoing caused
by its gross negligence or willful misconduct.
(b) The obligations of the Borrower and each LC Subsidiary
hereunder with respect to Letters of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms
hereof under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit or this Agreement or any agreement or
instrument relating thereto;
(ii) the existence of any claim, setoff, defense
or other right which the Borrower or any LC Subsidiary may
have at any time against the beneficiary, or any transferee,
of any Letter of Credit, or the Issuing Bank, any Lender, or
any other Person;
(iii) any draft, certificate, or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) any lack of validity, effectiveness, or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole
or in part;
(v) any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any
Letter of Credit or of the proceeds thereof;
(vi) any exchange, release or non-perfection of
any collateral, or any release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of
the obligations of the Borrower or an LC Subsidiary in
respect of the Letters of Credit;
(vii) any change in the time, manner or place of
payment of, or in any other terms of, all or any of the
obligations of the Borrower or any LC Subsidiary in respect
of the Letters of Credit or any other amendment or waiver of
or any consent to departure from all or any of this
Agreement;
(viii) any failure of the beneficiary of a Letter of
Credit to strictly comply with the conditions required in
order to draw upon any Letter of Credit;
(ix) any misapplication by the beneficiary of any
Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or
(x) any other circumstance or happening
whatsoever, whether or not similar to the foregoing;
provided, that, notwithstanding the foregoing, the Issuing Bank shall not
be relieved of any liability it may otherwise have as a result of its
gross negligence or willful misconduct.
SECTION 3.07 Increased Costs. (a) Change in Law. If, at
any time after the date of this Agreement, any change in any law or
regulation or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration
thereof shall either (i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against letters of credit or
guarantees issued by, or assets held by or deposits in or for the account
of, the Issuing Bank or any LC Lender or (ii) impose on the Issuing Bank
or any LC Lender any other condition regarding this Agreement or the
Letters of Credit or any collateral thereon, and the result of any event
referred to in clause (i) or (ii) above shall be to increase the cost to
the Issuing Bank or such LC Lender of issuing or maintaining, funding or
purchasing participations in the Letters of Credit, then, upon demand by
the Issuing Bank or such LC Lender (with a copy of such demand to the
Agent), the Borrower shall pay to the Agent for the account of the
Issuing Bank or such LC Lender, from time to time as specified by the
Issuing Bank or such LC Lender, additional amounts sufficient to
compensate the Issuing Bank or such LC Lender for such increased cost;
provided, that, the Borrower shall have no obligation to reimburse the
Issuing Bank or any LC Lender for increased costs incurred more than 60
days prior to the date of such demand. A certificate as to the amount of
such increased cost setting forth the basis for the calculation of such
increased costs, submitted by the Issuing Bank or an LC Lender to the
Borrower, shall be conclusive and binding for all purposes, absent
manifest error.
(b) Capital. If, at any time after the date of this
Agreement, the Issuing Bank or LC Lender determines that compliance with
any law or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by the Issuing Bank or such LC Lender or any corporation
controlling Issuing Bank or such LC Lender and that the amount of such
capital is increased by or based upon the existence of the Issuing Bank's
or LC Lender's commitment hereunder and other commitments of this type or
the issuance of (or commitment to purchase of participations in) the
Letters of Credit (or similar contingent obligations), then, upon demand
by the Issuing Bank or such LC Lender (with a copy of such demand to the
Agent), the Borrower shall pay to the Agent for the account of the
Issuing Bank or such LC Lender, from time to time as specified by the
Issuing Bank or such LC Lender, additional amounts sufficient to
compensate the Issuing Bank or such LC Lender or such corporation in the
light of such circumstances, to the extent that the Issuing Bank or such
LC Lender reasonably determines such increase in capital to be allocable
to the existence of the Issuing Bank's or such LC Lender's commitment
hereunder; provided, that, the Borrower shall have no obligation to pay
such compensatory amounts that relate to an actual increase in the
capital of the Issuing Bank or such LC Lender undertaken by the Issuing
Bank or such LC Lender more than 60 days prior to the date of such
demand. A certificate as to such amounts setting forth the basis for the
calculation of such amount submitted to the Borrower and the Agent by the
Issuing Bank or an LC Lender shall be conclusive and binding for all
purposes, absent manifest error.
(c) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this Section 3.07 shall survive the payment in
full (after the LC Termination Date) of all Obligations.
(d) Without affecting its rights under Sections 3.07(a) or
3.07(b) or any other provision of this Agreement, the Issuing Bank and
each LC Lender agrees that if there is any increase in any cost to or
reduction in any amount receivable by the Issuing Bank or LC Lender with
respect to which the Borrower would be obligated to compensate such
LC Lender pursuant to Sections 3.07(a) or 3.07(b), the Issuing Bank or
LC Lender shall use reasonable efforts to select an alternative issuing
office or Applicable Lending Office, as the case may be, which would not
result in any such increase in any cost to or reduction in any amount
receivable by the Issuing Bank or such LC Lender; provided, however, that
the Issuing Bank and each LC Lender shall not be obligated to select an
alternative issuing office or Applicable Lending Office if the Issuing
Bank or such LC Lender determines that (i) as a result of such selection
the Issuing Bank or such LC Lender would be in violation of any
applicable law, regulation, treaty, or guideline, or would incur
additional costs or expenses or (ii) such selection would be inadvisable
for regulatory reasons or inconsistent with the interests of the Issuing
Bank or such LC Lender.
SECTION 3.08 Uniform Customs and Practice. The Uniform
Customs and Practice for Documentary Credits as most recently published
by the International Chamber of Commerce ("UCP") shall in all respects
be deemed a part of this Article III as if incorporated herein and shall
apply to the Letters of Credit.
SECTION 3.09 Reductions and Increases in LC Commitments.
(a) The Borrower shall have the right, upon at least three Business Days'
notice to the Issuing Bank and the Agent, to irrevocably terminate in
whole or reduce in part the Issuing Bank's commitment to issue Letters of
Credit as specified in Section 3.01 (which reduction shall without
further act reduce in whole or ratably in part the respective
LC Commitments of the LC Lenders), provided, that, each partial reduction
shall be in the aggregate amount of $25,000,000 or an integral multiple
of $1,000,000 in excess thereof and no such reduction shall reduce the
LC Commitments below the then outstanding amount of Letter of Credit
Liability.
(b) Not more frequently than once in any period of twelve
consecutive calendar months occurring after the date hereof, the Borrower
shall have the right prior to the LC Termination Date to increase the
amount of the Issuing Bank's commitment to issue Letters of Credit and
the amount of the LC Commitments of one or more LC Lenders (each such
increase being an "LC Commitment Increase"), provided that the Issuing
Bank and such LC Lenders shall have consented to such LC Commitment
Increase (which consent may be granted or withheld by the Issuing Bank
and any LC Lender in its sole and absolute discretion), on and subject to
the following terms:
(i) The aggregate amount of all LC Commitment
Increases and A Commitment Increases shall not exceed $200,000,000
after the date hereof;
(ii) The aggregate amount of each LC Commitment
Increase shall be in a minimum amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof;
(iii) Each LC Commitment Increase shall increase the
amount of the Issuing Bank's commitment to issue Letters of Credit
and the aggregate amount of the LC Commitments by the same amount;
(iv) No proposed LC Commitment Increase shall occur
unless each of the following requirements in respect thereof shall
have been satisfied:
(A) The Agent shall have received from the
Borrower an irrevocable written notice (an "LC Commitment
Increase Notice"), dated not earlier than 60 days before the
proposed LC Commitment Increase Effective Date (as defined
below) therefor and not later than 30 days before such
proposed LC Commitment Increase Effective Date, that (1)
specifies (x) the aggregate amount of the proposed LC
Commitment Increase, (y) the LC Lenders whose LC Commitments
are to be increased by the proposed LC Commitment Increase
and the amount by which each such LC Lender's LC Commitment
is to be so increased and (z) the date (the "LC Commitment
Increase Effective Date") on which the proposed LC
Commitment Increase shall become effective, and (2) has been
signed by the Issuing Bank and each LC Lender whose LC
Commitment is to be increased, evidencing the consent of the
Issuing Bank and such LC Lender to the proposed LC Commitment
Increase;
(B) On and as of the LC Commitment Increase
Effective Date of the proposed LC Commitment Increase (1) the
following statements shall be true (and the giving of the
applicable LC Commitment Increase Notice shall constitute a
representation and warranty by the Borrower that on such LC
Commitment Increase Effective Date such statements are true):
(x) The representations and warranties
contained in Section 6.01 are correct on and as
of such LC Commitment Increase Effective Date
before and after giving effect to the proposed LC
Commitment Increase, as though made on and as of
such date, and
(y) No event has occurred and is
continuing, or would result from such LC
Commitment Increase, which constitutes an Event
of Default or Default; and
(2) the Agent shall have received such other approvals,
opinions or documents as the Agent may reasonably request;
(v) Promptly following its receipt of an LC
Commitment Increase Notice in proper form, the Agent shall deliver
copies thereof to the Issuing Bank and each LC Lender. If, and
only if, all of the terms, conditions and requirements specified in
paragraphs (i) through (iv) are satisfied in respect of any
proposed LC Commitment on and as of the proposed LC Commitment
Increase Effective Date thereof, then, as of such LC Commitment
Increase Effective Date and from and after such date, (1) the
amount of the Issuing Bank's commitment to issue Letters of Credit
shall be increased by the amount of the proposed LC Commitment
Increase and the LC Commitments of the LC Lenders consenting to
such LC Commitment Increase shall be increased by the respective
amounts specified in the LC Commitment Increase Notice pertaining
thereto and (2) references herein to the amount of the Issuing
Bank's commitment to issue Letters of Credit and to the amounts of
the LC Lenders' respective LC Commitments shall refer to respective
amounts giving effect to such LC Commitment Increase; and
(vi) It is understood that neither the Issuing Bank
nor any LC Lender shall have any obligation whatsoever to agree to
any request made by the Borrower for an LC Commitment Increase.
SECTION 3.10 Existing Letters of Credit. The Issuing
Bank currently has outstanding documentary and trade letters of credit
issued pursuant to the Original Agreement (the "Existing Letters of
Credit") the outstanding balance of which is set forth on Schedule IV
hereto. From and after the date hereof and upon fulfillment of the
conditions to initial Issuance specified in Section 5.01 hereof, each
such Existing Letter of Credit shall be deemed and treated for all
purposes hereof (including, without limitation, the calculation of fees
payable under Section 3.05, and calculating the usage of the Issuing
Bank's commitment under Section 3.01) as a "Letter of Credit"
hereunder, any participation interest existing prior to the date hereof
of any LC Lender in such Existing Letters of Credit shall, without
further action on its part, be deemed extinguished in full and each
LC Lender, without further act on its part, shall be deemed to have
purchased a participation in each such Existing Letter of Credit as
provided in Section 3.04 hereof in accordance with its LC Commitment
Percentage.
SECTION 3.11 Extension of LC Termination Date. At least 30
but not more than 45 days prior to the LC Termination Date, the Borrower,
by written notice to the Agent, may request that the LC Termination Date
be extended for a period of 364 days from its then current scheduled
expiration. The Agent shall promptly notify the Issuing Bank and each
LC Lender of such request, and the Issuing Bank and each LC Lender shall
in turn, within 20 days prior to such LC Termination Date, notify the
Borrower and the Agent in writing regarding whether the Issuing Bank or
such LC Lender (as the case may be) will consent to such extension. If,
and only if, (i) the Majority LC Lenders and the Issuing Bank consent in
writing to such extension prior to the tenth day preceding such LC
Termination Date and (ii) the Majority A Lenders consent to an extension
of the Revolving Termination Date pursuant to Section 2.14, the
LC Termination Date shall be so extended for such 364-day period and
references herein to the "LC Termination Date" shall refer to such
"LC Termination Date" as so extended. If the Issuing Bank or any
LC Lender shall fail to deliver such notice to the Borrower and the Agent
as provided above, the Issuing Bank or such LC Lender shall be deemed not
to have consented to such requested extension and the Issuing Bank's and
such LC Lender's LC Commitment shall terminate on the scheduled LC
Termination Date (each such non-extending LC Lender being a
"Non-Extending LC Lender"); provided, that the obligations of any Non-
Extending LC Lender under Section 3.04(e) shall remain in effect as
provided therein as to Letters of Credit Issued on or before the LC
Termination Date in effect prior to such extension. It is understood
that neither the Issuing Bank nor any LC Lender shall have any obligation
whatsoever to agree to any request made by the Borrower for an extension
of the LC Termination Date.
SECTION 3.12 Currency Provisions. (a) Equivalents.
For purposes of the provisions of this Article III, (i) the equivalent in
Dollars of any Alternative Currency shall be determined by using the mean
of the bid and offer quoted spot rates at which the Issuing Bank's
principal office in New York, New York offers to exchange Dollars for
such Alternative Currency in New York, New York at 11:00 A.M. (New York
City time) on the Business Day on which such equivalent is to be
determined and (ii) the equivalent in any Alternative Currency of Dollars
shall be determined by using the mean of the bid and offer quoted spot
rates at which the Issuing Bank's principal office in New York, New York
offers to exchange such Alternative Currency for Dollars in New York, New
York at 11:00 A.M. (New York City time) on the Business Day on which such
equivalent is to be determined.
(b) Issuing Bank's Commitment/LC Commitments. For purposes
of determining the unused portion of the Issuing Bank's commitment
specified in Section 3.01 and of each LC Lender's LC Commitment, the
equivalent in Dollars of each Letter of Credit issued by the Issuing Bank
in an Alternative Currency as determined on the date of the Issuance of
such Letter of Credit shall be the amount of the Issuing Bank's
commitment used in connection with the Issuance of such Letter of Credit
and the resulting proportionate amount of each LC Lender's LC Commitment
used, such reduction to be calculated in accordance with its
LC Commitment Percentage. Further adjustments shall be made with respect
to the unused portion of the Issuing Bank's commitment to Issue Letters
of Credit and each such LC Lender's LC Commitment based upon fluctuations
thereafter in the value of the Alternative Currency of such Letter of
Credit as provided in subsection (c) below.
(c) Mark to Market. If, on any day, the equivalent in
Dollars of the aggregate face amount of all Letters of Credit then
outstanding (less the aggregate amount of cash collateral held by the
Issuing Bank with respect to outstanding Letters of Credit) exceeds the
total of the LC Commitments, the Borrower shall, upon demand by the
Agent, immediately pay to the Issuing Bank, in Dollars, (i) the Dollar
amount of such excess plus (ii) a Dollar amount equal to the lesser of
(A) $1,000,000 and (B) 10% of the Dollar equivalent of all then existing
Letter of Credit Liability relating to Letters of Credit denominated in
Alternative Currencies, which amount shall be held by the Issuing Bank as
cash collateral for its obligations with respect to outstanding Letters
of Credit. Concurrently with such payment, the Borrower shall enter into
a cash collateral agreement with the Issuing Bank in form and substance
satisfactory to the Issuing Bank. Amounts on deposit with the Issuing
Bank as cash collateral shall be invested in Cash Equivalents as directed
by the Borrower and shall (so long as no Default has occurred and is
continuing) be released (1) if the LC Termination Date has not occurred,
on the date on which the aggregate of all Letter of Credit Liability does
not exceed 99% of the aggregate amount of the LC Commitments then in
effect (without regard to any usage thereof) or (2) if the LC Termination
Date has occurred, on the first day after the LC Termination Date on
which no Letter of Credit Liability or Letters of Credit are outstanding.
(d) Monthly Report. The Issuing Bank, on the last Business
Day of each month until the LC Termination Date, shall calculate the
Letter of Credit Liability on such date (converting any amounts of the
Letter of Credit Liability which are denominated in an Alternative
Currency to Dollars for purposes of such calculation) and shall promptly
send notice of (i) such Letter of Credit Liability and (ii) the Dollar
amount of any excess of Letter Credit Liability over total LC Commitments
to the Borrower and to each LC Lender, and the Borrower shall promptly
upon receipt thereof make the payments provided for in subsection (c)
above if applicable.
SECTION 3.13 Subsidiary Guaranty. (a) Generally. The
Issuing Bank may, from time to time, Issue Letters of Credit for the
account of each LC Subsidiary provided, that, the reimbursement and other
obligations of each such LC Subsidiary are and remain unconditionally
guaranteed by the Borrower pursuant to this Section 3.13.
(b) Guaranty. The Borrower hereby unconditionally
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all obligations of the LC Subsidiaries now
or hereafter existing under this Agreement with respect to Letters of
Credit issued for the account of any of the LC Subsidiaries, including
any extensions, modifications, substitutions, amendments and renewals
thereof, whether for reimbursement obligations, interest, fees, expenses
or otherwise (such obligations being the "Subsidiary Obligations"), and
agrees to pay any and all expenses (including counsel fees and expenses)
incurred by the Issuing Bank or the LC Lenders in enforcing any rights
hereunder with respect to the Subsidiary Obligations. Without limiting
the generality of the foregoing, the Borrower's liability shall extend to
all amounts which constitute part of the Subsidiary Obligations and would
be owed by any LC Subsidiary to the Issuing Bank or the LC Lenders
hereunder, or under the Letters of Credit issued for the account of an
LC Subsidiary, but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such LC Subsidiary.
(c) Guaranty Absolute. The Borrower guarantees that the
Subsidiary Obligations will be paid strictly in accordance with the terms
hereof regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of
the Issuing Bank or the LC Lenders with respect thereto. The obligations
of the Borrower hereunder are independent of the Subsidiary Obligations
and a separate action or actions may be brought and prosecuted against
the Borrower to enforce the guaranty contained in this Section 3.13,
irrespective of whether any action is brought against any LC Subsidiary
or whether any LC Subsidiary is joined in any such action or actions.
The liability of the Borrower under the guaranty contained in this
Section 3.13 shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any of
the Subsidiary Obligations or any agreement or instrument
relating thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Subsidiary Obligations, or any other amendment or waiver of
or any consent to departure herefrom with respect to Letters
of Credit issued for the account of an LC Subsidiary
including, without limitation, any increase in the Subsidiary
Obligations resulting from the Issuance of Letters of Credit
beyond the aggregate limitation specified in Section 3.01 to
any and all LC Subsidiaries or otherwise;
(iii) any taking, exchange, release or
non-perfection of any collateral, or any taking, release or
amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Subsidiary Obligations;
(iv) any manner of application of collateral, or
proceeds thereof, to all or any of the Subsidiary
Obligations, or any manner of sale or other disposition of
any collateral for all or any of the Subsidiary Obligations
or any other assets of an LC Subsidiary;
(v) any change, restructuring or termination of the
corporate structure or existence of an LC Subsidiary or any
LC Subsidiary's lack of corporate power or authority; or
(vi) any other circumstance which might
otherwise constitute a defense available to, or a discharge
of, a third party guarantor.
The guaranty provided in this Section 3.13 shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any
of the Subsidiary Obligations is rescinded or must otherwise be returned
by the Issuing Bank or any LC Lender upon the insolvency, bankruptcy or
reorganization of an LC Subsidiary or otherwise, all as though such
payment had not been made.
(d) Waivers. The Borrower hereby waives, to the extent
permitted by applicable law:
(i) any requirement that the Issuing Bank or any
LC Lender secure or insure any security interest or lien or
any property subject thereto or exhaust any right or take any
action against any LC Subsidiary or any other Person or any
collateral;
(ii) any defense arising by reason of any claim or
defense based upon an election of remedies by the Issuing
Bank or any LC Lender (including, without limitation, an
election to nonjudicially foreclose on any real or personal
property collateral) which in any manner impairs, reduces,
releases or otherwise adversely affects its subrogation,
reimbursement or contribution rights or other rights to
proceed against any LC Subsidiary or any other Person or any
collateral;
(iii) any defense arising by reason of the failure
of any LC Subsidiary to properly execute any letter of credit
application and agreement or otherwise comply with applicable
legal formalities;
(iv) any defense or benefits that may be derived
from California Civil Code sections 2808, 2809, 2810, 2819, 2845 or
2850, or California Code of Civil Procedure sections 580a, 580d or
726, or comparable provisions of the laws of any other
jurisdiction and all other suretyship defenses it would
otherwise have under the laws of California or any other
jurisdiction;
(v) any duty on the part of the Issuing Bank or any
LC Lender to disclose to the Borrower any matter, fact or
thing relating to the business, operation or condition of any
LC Subsidiary and its respective assets now known or
hereafter known by the Issuing Bank or any LC Lender;
(vi) all benefits of any statute of limitations
affecting the Borrower's liability under or the enforcement
of the guaranty provided in this Section 3.13 or any of the
Subsidiary Obligations or any collateral;
(vii) all setoffs and counterclaims;
(viii) promptness, diligence, presentment, demand
for performance and protest;
(ix) notice of nonperformance, default,
acceleration, protest or dishonor;
(x) except for any notice otherwise required by
applicable laws that may not be effectively waived by the
Borrower, notice of sale or other disposition of any
collateral; and
(xi) notice of acceptance of the guaranty provided
in this Section 3.13 and of the existence, creation or
incurring of new or additional Subsidiary Obligations.
SECTION 3.14 Dollar Payment Obligation. Notwithstanding any
other term or provision hereof to the contrary, if the Borrower or any
LC Subsidiary fails to reimburse the Issuing Bank for any payment made by
the Issuing Bank under a Letter of Credit denominated in an Alternative
Currency by the close of business on the Business Day when due at the
Payment Office specified for such reimbursement payment, then the payment
made by the Issuing Bank in such Alternative Currency shall be converted
into Dollars (the "Dollar Payment Amount") by the Issuing Bank as
provided for herein, and each of the Borrower and each LC Subsidiary for
whose account such Letter of Credit was Issued agrees that it shall be
unconditionally obligated to, and shall immediately, reimburse the
Issuing Bank the Dollar Payment Amount at the Issuing Bank's then Payment
Office for Dollars.
SECTION 3.15 Applications. This Agreement shall control
over any provision of any application and agreement for Letters of Credit
to the contrary, but additive or supplemental provisions of any such
application and agreement shall apply to each Letter of Credit Issued
pursuant to such application and agreement.
SECTION 3.16 LC Subsidiaries. Any Subsidiary of the
Borrower not an LC Subsidiary on the date hereof may become an
"LC Subsidiary" hereunder by delivering to the Issuing Bank (which
shall promptly forward a copy thereof to each LC Lender and the Agent) an
agreement, in form and substance satisfactory to the Issuing Bank,
wherein such Subsidiary agrees to be bound by all terms and provisions of
this Agreement relating to Letters of Credit to be issued for the account
of such Subsidiary and delivers a written consent of the Borrower
assenting to the inclusion of such Subsidiary as an "LC Subsidiary"
hereunder. Unless objected to by the Majority LC Lenders within the 10
day period referred to below, such Subsidiary shall become an
"LC Subsidiary" hereunder 10 days after the Issuing Bank notifies the
Borrower that such agreement and consent are in form and substance
satisfactory to it; provided, that, no Subsidiary shall become an
"LC Subsidiary" until the Issuing Bank shall have notified the Borrower
in writing that such agreement and consent are in form and substance
satisfactory to the Issuing Bank.
ARTICLE IV
PAYMENTS, TAXES, EXTENSIONS, ETC.
SECTION 4.01 Payments and Computations/Borrowings. (a)
The Borrower shall make each payment hereunder with respect to Article
II, the A Advances, the A Lenders, the B Advances and the Agent free and
clear of all claims, charges, offsets or deductions whatsoever not later
than 12:00 noon (New York City time) on the day when due in U.S. dollars
to the Agent (unless otherwise specified in Section 2.03 with respect to
the B Advances) at its address referred to in Section 10.02 in same day
funds. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility or
utilization fees ratably (other than amounts payable pursuant to Section
2.03, 2.05(b), 2.08, 2.12, 2.14 or 4.02) to the A Lenders for the account
of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to such A Lender to be
distributed to the appropriate A Lender or A Lenders and applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 10.07(d), from and after the
effective date specified in such Assignment and Acceptance, the Agent
shall make all payments hereunder in respect of the interest assigned
thereby to the A Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between
themselves.
(b) The Borrower and each LC Subsidiary hereby authorize
the Agent and each A Lender if and to the extent payment owed to the
Agent or such A Lender is not paid when due hereunder to charge from time
to time against any or all of the Borrower's or such LC Subsidiary's
accounts with the Agent or such A Lender any amount so due.
(c) All computations of interest based on the Base Rate and
of facility fees shall be made by the Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest
relating to utilization fees, fixed rates of interest on B Advances or
based on the Eurodollar Rate or the Federal Funds Rate shall be made by
the Agent, and all computations of interest pursuant to Section 2.08
shall be made by an A Lender, on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees are
payable. Each determination by the Agent (or, in the case of Section
2.08, by an A Lender) of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility or
utilization fee, as the case may be; provided, however, if such extension
would cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the A Lender or
A Lenders hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to
the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to such A Lender or A Lenders on such
due date an amount equal to the amount then due such A Lender or
A Lenders. If and to the extent that the Borrower shall not have so made
such payment in full to the Agent, each such A Lender shall repay to the
Agent forthwith on demand such amount distributed to such A Lender
together with interest thereon, for each day from the date such amount
is distributed to such A Lender until the date such A Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 4.02 Taxes/Borrowings. (a) Any and all payments by
the Borrower hereunder shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each A Lender, LC Lender, the Issuing
Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such A Lender,
LC Lender, the Issuing Bank or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each
A Lender or LC Lender (as the case may be), taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such A Lender's
or LC Lender's (as the case may be) Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable
hereunder to any A Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 4.02) such A Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Letters of Credit (hereinafter referred
to as "Other Taxes").
(c) The Borrower will reimburse each A Lender and the Agent
for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.02) paid by such A Lender or the
Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally asserted.
This reimbursement shall be made within 30 days from the date such
A Lender or the Agent (as the case may be) makes written demand therefor.
The Agent and each A Lender, as the case may be, shall give prompt
(within 10 Business Days) notice to the Borrower of the payment by the
Agent or such A Lender, as the case may be, of such Taxes or Other Taxes,
and of the assertion by any governmental or taxing authority that such
Taxes or Other Taxes are due and payable, but the failure to give such
notice shall not affect the Borrower's obligations hereunder to reimburse
the Agent and each A Lender for such Taxes or Other Taxes, except that
the Borrower shall not be liable for penalties or interest accrued or
incurred after such 10 Business Day period until such time as it receives
the notice contemplated above, after which time it shall be liable for
interest and penalties accrued or incurred prior to or during such 10
Business Day period and accrued or incurred after such receipt. The
Borrower shall not be liable for any penalties, interest, expense or
other liability with respect to such Taxes or Other Taxes after it has
reimbursed the amount thereof to the Agent or the appropriate A Lender,
as the case may be.
(d) Each A Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each Lender and
on the date of the Assignment and Acceptance pursuant to which it becomes
an A Lender in the case of each other A Lender, and from time to time
thereafter if requested in writing by the Borrower (but only so long as
such A Lender remains lawfully able to do so), shall provide the Borrower
with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying
that such A Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding
tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a
trade or business in the United States. If the form provided by an
A Lender at the time such A Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 4.02(a).
(e) For any period with respect to which an A Lender has
failed to provide the Borrower with the appropriate form described in
Section 4.02(d) (other than if such failure is due to a change in law
occurring subsequent to the date on which a form originally was required
to be provided, or if such form otherwise is not required under the first
sentence of subsection (d) above), such A Lender shall not be entitled to
indemnification under Section 4.02(a) with respect to Taxes imposed by
the United States; provided, however, that should an A Lender become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the A Lender shall
reasonably request to assist the A Lender to recover such Taxes.
(f) Notwithstanding any contrary provisions of this
Agreement, in the event that an A Lender that originally provided such
form as may be required under Section 4.02(d) thereafter ceases to
qualify for complete exemption from United States withholding tax, such
A Lender may assign its interest under this Agreement to any assignee and
such assignee shall be entitled to the same benefits under this
Section 4.02 as the assignor provided, that, the rate of United States
withholding tax applicable to such assignee shall not exceed the rate
then applicable to the assignor.
(g) Without affecting its rights under this Section 4.02 or
any provision of this Agreement, each A Lender agrees that if any Taxes
or Other Taxes are imposed and required by law to be paid or to be
withheld from any amount payable to any A Lender or its Applicable
Lending Office with respect to which the Borrower would be obligated
pursuant to this Section 4.02 to increase any amounts payable to such
A Lender or to pay any such Taxes or Other Taxes, such A Lender shall use
reasonable efforts to select an alternative Applicable Lending Office
which would not result in the imposition of such Taxes or Other Taxes;
provided, however, that no A Lender shall be obligated to select an
alternative Applicable Lending Office if such A Lender determines that
(i) as a result of such selection such A Lender would be in violation of
an applicable law, regulation, or treaty, or would incur additional costs
or expenses or (ii) such selection would be inadvisable for regulatory
reasons or inconsistent with the interests of such A Lender.
(h) Each A Lender agrees with the Borrower that it will
take all reasonable actions by all usual means (i) to secure and maintain
all benefits available to it under the provisions of any applicable
double tax treaty concluded by the United States of America to which it
may be entitled by reason of the location of such A Lender's Applicable
Lending Office or place of incorporation or its status as an enterprise
of any jurisdiction having any such applicable double tax treaty, if such
benefit would reduce the amount payable by the Borrower in accordance
with this Section 4.02 and (ii) otherwise to cooperate with the Borrower
to minimize the amount payable by the Borrower pursuant to this Section
4.02; provided, however, that no A Lender shall be obliged to disclose to
the Borrower any information regarding its tax affairs or tax
computations nor to reorder its tax affairs or tax planning pursuant
hereto.
(i) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this Section 4.02 shall survive the payment in
full of the Obligations.
SECTION 4.03 Sharing of Payments, Etc./Borrowings. If any
A Lender shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) on account of
the A Advances made by it (other than pursuant to Section 2.05(b), 2.08,
2.12, 2.14 or 4.02) in excess of its ratable share of payments on account
of the A Advances obtained by all the A Lenders, such A Lender shall
forthwith purchase from the other A Lenders such participations in the
A Advances made by them as shall be necessary to cause such purchasing
A Lender to share the excess payment ratably with each of them, provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing A Lender, such purchase from each A Lender
shall be rescinded and such A Lender shall repay to the purchasing
A Lender the purchase price to the extent of such recovery together with
an amount equal to such A Lender's ratable share (according to the
proportion of (i) the amount of such A Lender's required repayment to
(ii) the total amount so recovered from the purchasing A Lender) of any
interest or other amount paid or payable by the purchasing A Lender in
respect of the total amount so recovered. The Borrower agrees that any
A Lender so purchasing a participation from another A Lender pursuant to
this Section 4.03 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such A Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 4.04 Evidence of Debt/Borrowings. (a) Each
A Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such A Lender
resulting from each Advance owing to such A Lender from time to time,
including the amounts of principal and interest payable and paid to such
A Lender from time to time hereunder.
(b) The Register maintained by the Agent pursuant to
Section 10.07(c) shall include a control account, and a subsidiary
account for each A Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each A Borrowing made hereunder, the
Type of Advances comprising such A Borrowing and the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower
to each A Lender hereunder, and (iv) the amount of any sum received by
the Agent from the Borrower hereunder and each A Lender's share thereof.
(c) The entries made in the Register shall be conclusive
and binding for all purposes, absent manifest error.
SECTION 4.05 Payments and Computations/Letters of Credit.
(a) The Borrower and each LC Subsidiary, as the case may be, shall make
each payment with respect to the Letters of Credit, the Issuing Bank or
the LC Lenders to be made by it free and clear of all claims, charges,
offsets or deductions whatsoever not later than (i) if such payment
relates to letter of credit facility fees or amounts (other than
reimbursements for payments in an Alternative Currency made under Letters
of Credit) or if such payment relates to a Letter of Credit denominated
in Dollars, 12:00 noon (New York City time) on the day when due in
Dollars to the Issuing Bank at its address referred to in Section 10.02
in same day funds and (ii) if such payment relates to reimbursement of a
Letter of Credit denominated in an Alternative Currency, (A) in such
Alternative Currency, at the Issuing Bank's Payment Office therefor so
long as such payment is made by the close of business on the Business Day
when due and (B) thereafter in Dollars (at the then Dollar equivalent of
the amount due on such preceding Business Day), by 12:00 noon (New York
City time) to the Issuing Bank at its address referred to in Section
10.02 in same day funds as provided in Section 3.14 above. The Issuing
Bank will promptly thereafter (if amounts are owed to the LC Lenders by
the terms hereof) cause to be distributed like funds relating to the
payment of reimbursement obligations or letter of credit facility fees
ratably (other than amounts payable pursuant to Section 3.03(a), 3.07, or
4.06) to the LC Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other
amount payable to the Issuing Bank or to such LC Lender to be distributed
to the appropriate LC Lender or LC Lenders and applied in accordance with
the terms of this Agreement. Upon the Agent's acceptance of an
Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 10.07(d), from and after the
effective date specified in such Assignment and Acceptance, the Issuing
Bank shall make all payments hereunder in respect of the interest
assigned thereby to the LC Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in
such payments for periods prior to such effective date directly between
themselves.
(b) The Borrower and each LC Subsidiary hereby authorize
each LC Lender and the Issuing Bank, if and to the extent payment owed to
such LC Lender or the Issuing Bank (including the immediate repayments of
participations purchased and funded by an LC Lender pursuant to
Section 3.04) is not paid when due hereunder to charge from time to time
against any or all of the Borrower's or such LC Subsidiary's accounts
with such LC Lender or Issuing Bank any amount so due.
(c) All computations of interest based on the Base Rate
and of letter of credit facility fees shall be made by the Issuing Bank
on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Federal Funds Rate shall be made by
the Issuing Bank on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or letter of credit
facility fees are payable. Each determination by the Issuing Bank of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or letter of
credit facility fee, as the case may be.
(e) Unless the Issuing Bank shall have received notice
from the Borrower or an LC Subsidiary prior to the date on which any
payment is due to the Issuing Bank or LC Lenders hereunder that the
Borrower or such LC Subsidiary will not make such payment in full, the
Issuing Bank may assume that the Borrower or such LC Subsidiary has made
such payment in full to the Issuing Bank on such date and the Issuing
Bank may, in reliance upon such assumption, cause to be distributed to
such LC Lender or LC Lenders on such due date an amount equal to the
amount then due such LC Lender or LC Lenders. If and to the extent that
the Borrower or such LC Subsidiary shall not have so made such payment in
full to the Issuing Bank, each such LC Lender shall repay to the Issuing
Bank forthwith on demand such amount distributed to such LC Lender
together with interest thereon, for each day from the date such amount is
distributed to such LC Lender until the date such LC Lender repays such
amount to the Issuing Bank, at the Federal Funds Rate.
SECTION 4.06 Taxes/Letters of Credit. (a) Any and all
payments by the Borrower and each LC Subsidiary hereunder with respect to
the Letters of Credit shall be made free and clear of and without
deduction for any and all present or future Taxes. If the Borrower or
any LC Subsidiary shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any LC Lender or the Issuing
Bank, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.06) such LC Lender or the
Issuing Bank (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower
or such LC Subsidiary shall make such deductions and (iii) the Borrower
or the appropriate LC Subsidiary shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) The Borrower or the appropriate LC Subsidiary will
reimburse each LC Lender and the Issuing Bank for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 4.06) paid by such LC Lender or the Issuing Bank (as the case may
be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This reimbursement shall
be made within 30 days from the date such LC Lender or the Issuing Bank
(as the case may be) makes written demand therefor. The Issuing Bank and
each LC Lender, as the case may be, shall give prompt (within 10 Business
Days) notice to the Borrower of the payment by the Issuing Bank or such
LC Lender, as the case may be, of such Taxes or other Taxes, and of the
assertion by any governmental or taxing authority that such Taxes or
Other Taxes are due and payable, but the failure to give such notice
shall not affect the Borrower's or any LC Subsidiary's obligations
hereunder to reimburse the Issuing Bank and each LC Lender for such Taxes
or Other Taxes, except that neither the Borrower nor any LC Subsidiary
shall be liable for penalties or interest accrued or incurred after such
10 Business Day period until such time as the Borrower receives the
notice contemplated above, after which time it shall be liable for
interest and penalties accrued or incurred prior to or during such 10
Business Day period and accrued or incurred after such receipt. Neither
the Borrower nor any LC Subsidiary shall be liable for any penalties,
interest, expense or other liability with respect to such Taxes or Other
Taxes after it has reimbursed the amount thereof to the Issuing Bank or
the appropriate LC Lender.
(c) Each LC Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each Lender and
on the date of the Assignment and Acceptance pursuant to which it becomes
an LC Lender in the case of each other LC Lender, and from time to time
thereafter if requested in writing by the Borrower (but only so long as
such LC Lender remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate,
or any successor form prescribed by the Internal Revenue Service,
certifying that such LC Lender is entitled to benefits under an income
tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States. If the form
provided by an LC Lender at the time such LC Lender first becomes a party
to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes.
(d) For any period with respect to which an LC Lender has
failed to provide the Borrower with the appropriate form described in
Section 4.06(c) (other than if such failure is due to a change in law
occurring subsequent to the date on which a form originally was required
to be provided, or if such form otherwise is not required under the first
sentence of subsection (d) above), such LC Lender shall not be entitled
to indemnification under Section 4.06(a) with respect to Taxes imposed by
the United States; provided, however, that should an LC Lender become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the LC Lender shall
reasonably request to assist the LC Lender to recover such Taxes.
(e) Notwithstanding any contrary provisions of this
Agreement, in the event that an LC Lender that originally provided such
form as may be required under Section 4.06(c) thereafter ceases to
qualify for complete exemption from United States withholding tax, such
LC Lender may assign its interest under this Agreement to any assignee
and such assignee shall be entitled to the same benefits under this
Section 4.06 as the assignor provided that the rate of United States
withholding tax applicable to such assignee shall not exceed the rate
then applicable to the assignor.
(f) Without affecting its rights under this Section 4.06 or
any other provision of this Agreement, the Issuing Bank and each
LC Lender agree that if any Taxes or Other Taxes are imposed and required
by law to be paid or to be withheld from any amount payable to the
Issuing Bank or any LC Lender or its Applicable Lending Office with
respect to which the Borrower or any LC Subsidiary would be obligated
pursuant to this Section 4.06 to increase any amounts payable to the
Issuing Bank or such LC Lender or to pay any such Taxes or Other Taxes,
the Issuing Bank or such LC Lender shall use reasonable efforts to select
an alternative issuing office or Applicable Lending Office, as the case
may be, which would not result in the imposition of such Taxes or Other
Taxes; provided, however, that the Issuing Bank and each LC Lender shall
not be obligated to select an alternative issuing office or Applicable
Lending Office, as the case may be, if the Issuing Bank or such LC Lender
determines that (i) as a result of such selection the Issuing Bank or
such LC Lender would be in violation of an applicable law, regulation, or
treaty, or would incur additional costs or expenses or (ii) such
selection would be inadvisable for regulatory reasons or inconsistent
with the interests of the Issuing Bank or such LC Lender.
(g) Each LC Lender agrees with the Borrower that it will
take all reasonable actions by all usual means (i) to secure and maintain
the benefit of all benefits available to it under the provisions of any
applicable double tax treaty concluded by the United States of America to
which it may be entitled by reason of the location of such LC Lender's
Applicable Lending Office or place of incorporation or its status as an
enterprise of any jurisdiction having any such applicable double tax
treaty, if such benefit would reduce the amount payable by the Borrower
or an LC Subsidiary in accordance with this Section 4.06 and
(ii) otherwise to cooperate with the Borrower to minimize the amount
payable by the Borrower or any LC Subsidiary pursuant to this
Section 4.06; provided, however, that no LC Lender shall be obliged to
disclose to the Borrower or any LC Subsidiary any information regarding
its tax affairs or tax computations nor to reorder its tax affairs or tax
planning pursuant hereto.
(h) Without prejudice to the survival of any other
agreement of the Borrower or any LC Subsidiary hereunder, the agreements
and obligations of the Borrower and the LC Subsidiaries contained in this
Section 4.06 shall survive the payment in full of the Obligations.
SECTION 4.07 Sharing of Payments, Etc./Letters of Credit.
If any LC Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise)
on account of any Letter of Credit Liability of the Borrower or any
LC Subsidiary hereunder (other than pursuant to Section 3.07 or 4.06) in
excess of its LC Commitment Percentage of any such payments on account of
such Letter of Credit Liability obtained by all the LC Lenders, such
LC Lender shall forthwith purchase from the other LC Lenders such
participations in such other LC Lenders' participations purchased
pursuant to Section 3.04 as shall be necessary to cause such purchasing
LC Lender to share the excess payment ratably with each other LC Lender,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing LC Lender such purchase from
each other LC Lender shall be rescinded and each such LC Lender shall
repay to the purchasing LC Lender the purchase price to the extent of
such recovery together with an amount equal to each such LC Lender's
ratable share (according to the proportion of (i) the amount of such
LC Lender's required repayment to (ii) the total amount so recovered from
the purchasing LC Lender) of any interest or other amount paid or payable
by the purchasing LC Lender in respect of the total amount so recovered.
The Borrower and each LC Subsidiary agree that any LC Lender so
purchasing a sub-participation from another LC Lender pursuant to this
Section 4.07 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to
such sub-participation as fully as if such LC Lender were the direct
creditor of the Borrower or each LC Subsidiary in the amount of such
participation.
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01 Condition Precedent to Effectiveness of This
Agreement. This Agreement shall be effective as of June 29, 1999 if on
or before such date the Agent shall have received the following, in form
and substance satisfactory to the Agent and in sufficient copies for each
Lender:
(a) Certified copies of all documents of the Borrower
evidencing necessary corporate action and governmental approvals,
if any, with respect to this Agreement.
(b) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures
of the officers of the Borrower and each LC Subsidiary authorized
to sign this Agreement and the other documents to be delivered
hereunder (including, without limitation, Letter of Credit
applications and agreements).
(c) A favorable opinion of Borrower's General Counsel or
Associate General Counsel, substantially in the form of Exhibit C
hereto, and as to such other matters as any Lender through the
Agent may reasonably request.
(d) A favorable opinion of Shearman & Sterling, counsel
for the Agent, substantially in the form of Exhibit D hereto.
(e) Such other approvals, opinions or documents as the
Agent may reasonably request.
SECTION 5.02 Conditions Precedent to Each
A Borrowing/Issuance. The obligation of each A Lender to make an
A Advance on the occasion of each A Borrowing (including the initial
A Borrowing) and the obligation of the Issuing Bank to Issue each Letter
of Credit (including the initial Letter of Credit) shall be subject to
the further conditions precedent that on the date of such A Borrowing or
Issuance the following statements shall be true (and each of the giving
of the applicable Notice of A Borrowing and the acceptance by the
Borrower of the proceeds of such A Borrowing and the request for Issuance
by the Borrower or an LC Subsidiary shall constitute a representation and
warranty by the Borrower or such LC Subsidiary that on the date of such
A Borrowing or Issuance such statements are true):
(a) The representations and warranties contained in
Section 6.01 (other than the last sentence of Section 6.01(e)) are
correct on and as of the date of such A Borrowing or Issuance,
before and after giving effect to such A Borrowing or Issuance, and
to the application of the proceeds therefrom, as though made on and
as of such date, and
(b) (i) No event has occurred and is continuing, or
would result from such A Borrowing or from the application of the
proceeds therefrom or from such Issuance, which constitutes an
Event of Default or Default and (ii) no event has occurred and is
continuing which constitutes an "Event of Default" or "Default"
under the Five-Year Credit Agreement.
SECTION 5.03 Conditions Precedent to Each B Borrowing. The
obligation of each A Lender which is to make a B Advance on the occasion
of a B Borrowing (including the initial B Borrowing) to make such
B Advance as part of such B Borrowing is subject to the conditions
precedent that (i) the Agent shall have received the written confirmatory
Notice of B Borrowing with respect thereto or the notices from the
Borrower contemplated by the second sentence of Section 2.03(a)(v) and
(ii) on the date of such B Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of B Borrowing and
the acceptance by the Borrower of the proceeds of such B Borrowing shall
constitute a representation and warranty by the Borrower that on the date
of such B Borrowing such statements are true):
(a) The representations and warranties contained in
Section 6.01 (other than the last sentence of Section 6.01(e)) are
correct on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(b) (i) No event has occurred and is continuing, or
would result from such B Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or
Default and (ii) no event has occurred and is continuing which
constitutes an "Event of Default" or "Default" under the Five-
Year Credit Agreement, and
(c) No event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has
been provided to the Agent and each A Lender by the Borrower in
connection herewith would, taken as a whole, include an untrue
statement of a material fact or omit to state any material fact or
any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of Delaware; each
LC Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of
incorporation. The Borrower and each of its Subsidiaries possess
all corporate powers and all other authorizations and licenses
necessary to engage in their respective businesses, except where
the failure to so possess would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the
Borrower and each LC Subsidiary of this Agreement are within the
Borrower's and such LC Subsidiary's respective corporate powers,
have been duly authorized by all necessary corporate action, and do
not contravene (i) the Borrower's or any LC Subsidiary's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower or any LC Subsidiary or their respective
properties.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower or each LC Subsidiary of this
Agreement.
(d) This Agreement is the legal, valid and binding
obligation of the Borrower and each LC Subsidiary enforceable
against the Borrower and each LC Subsidiary in accordance with its
terms.
(e) The Consolidated balance sheets of the Borrower and
its Subsidiaries as at February 1, 1999, and the related
Consolidated statements of income and retained earnings of the
Borrower and its Subsidiaries for the Fiscal Year then ended,
certified by Deloitte & Touche LLP, copies of which have been
furnished to each Lender, fairly present the Consolidated financial
condition of the Borrower and its Subsidiaries as at such date and
the results of the operations of the Borrower and its Subsidiaries
for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. Since
February 1, 1999, there has been no material adverse change in the
condition (financial or otherwise), operations, properties or
prospects of the Borrower and its Subsidiaries taken as a whole.
(f) There is no pending or, to the best of Borrower's
knowledge, threatened action or proceeding affecting the Borrower
or any of its Subsidiaries before any court, governmental agency or
arbitrator, which has a reasonable probability (taking into account
the exhaustion of all appeals and the assertion of all defenses) of
having a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Agreement.
(g) Following the application of the proceeds of each
Advance, not more than 25 percent of the value of the assets
(either of the Borrower only or of the Borrower and its
Subsidiaries on a Consolidated basis) which are subject to any
restriction on Liens set forth in this Agreement or in any
agreement or instrument between the Borrower and any Lender or any
Affiliate of any Lender relating to Debt and within the scope of
Section 8.01(d) will consist of Margin Stock.
(h) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act
of 1940, as amended.
(i) Set forth on Schedule VII hereto is a complete and
accurate list, as of the date hereof, of all Plans of the Borrower
and its Subsidiaries. Neither the Borrower nor any ERISA Affiliate
is a party or subject to, or has any obligation to make payments,
to, any Multiemployer Plan.
ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01 Affirmative Covenants. The Borrower will,
unless the Majority Combined Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries to comply, in all material respects with all
applicable laws (including, without limitation, all Environmental
Laws), rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon
its property except to the extent contested in good faith or where
the failure to comply would not have a Material Adverse Effect.
(b) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory),
and franchises except if, in the reasonable business judgment of
the Borrower or such Subsidiary, as the case may be, it is in its
best economic interest not to preserve and maintain such rights or
franchises and such failure to preserve and maintain such rights or
franchises would not materially adversely affect the rights of the
Lenders or the Issuing Bank hereunder or the ability of the
Borrower or any LC Subsidiary to perform its obligations hereunder.
(c) Visitation Rights. Permit the Agent, the Issuing Bank
and any Lender or any agents or representatives thereof from time
to time during normal business hours to examine and make copies of
and abstracts from the records and books of account of, and upon
reasonable prior notice to visit the properties of, the Borrower
and its Subsidiaries during reasonable business hours, without
hindrance or delay, and to discuss the affairs, finances and
accounts of the Borrower and its Subsidiaries with any of their
respective directors, officers or agents.
(d) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each
of its Subsidiaries in accordance with sound business practice.
(e) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties which are used or useful in the
conduct of its business in good working order and condition,
ordinary wear and tear excepted, consistent with sound business
practice, except where the failure to so maintain and preserve
would not have a Material Adverse Effect.
(f) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance (other than earthquake
insurance) in amounts, from responsible and reputable insurance
companies or associations, with limitations, of types and on terms
as is customary for the industry; provided, that, the Borrower and
each of its Subsidiaries may self-insure risks and liabilities in
accordance with its practice as of the date hereof and may in
addition self-insure risks and liabilities in amounts as are
customarily self-insured by similarly situated Persons in the
industry.
(g) Employment of Technology, Disposal of Hazardous
Materials, Etc. (i) Employ, and cause each of its Subsidiaries to
employ, appropriate technology and compliance procedures to
maintain compliance with any applicable Environmental Laws except
where the failure to so employ would not have a Material Adverse
Effect, (ii) obtain and maintain, and cause each of its
Subsidiaries to obtain and maintain, any and all material permits
required by applicable Environmental Laws in connection with its or
its Subsidiaries' operations and (iii) dispose of, and cause each
of its Subsidiaries to dispose of, any and all Hazardous Substances
only at facilities and with carriers reasonably believed to possess
valid permits under RCRA, if applicable, and any applicable state
and local Environmental Laws except where the failure to so dispose
would not have a Material Adverse Effect. The Borrower shall use
its best efforts, and cause each of its Subsidiaries to use its
best efforts, to obtain all certificates required by law to be
obtained by the Borrower and its Subsidiaries from all contractors
employed by the Borrower or any of its Subsidiaries in connection
with the transport or disposal of any Hazardous Substances except
where failure to transport or dispose in accordance with any
applicable Environmental Laws would not have a Material Adverse
Effect.
(h) Environmental Matters. If the Borrower or any of its
Subsidiaries shall:
(i) receive written notice that any material
violation of any Environmental Laws may have been committed
or is about to be committed by the Borrower or any of its
Subsidiaries the cure of which would result in expenditures
exceeding $1,000,000;
(ii) receive written notice that any administrative
or judicial complaint or order has been filed or is about to
be filed against the Borrower or any of its Subsidiaries
alleging any material violation of any Environmental Laws or
requiring the Borrower or any of its Subsidiaries to take any
action (which, if taken, would result in expenditures
exceeding $1,000,000) in connection with the release or
threatened release of Hazardous Substances or solid waste
into the environment; or
(iii) receive written notice from a federal,
state, foreign or local governmental agency or private party
alleging that the Borrower or any of its Subsidiaries is
liable or responsible for costs in excess of $1,000,000
associated with the response to cleanup, stabilization or
neutralization of any Environmental Activity;
then it shall provide the Agent with a copy of such notice within
five Business Days of the Borrower's or such Subsidiary's receipt
thereof.
(i) Guaranty. Within ten Business Days after the request
of the Majority Combined Lenders made through the Agent, cause its
domestic Subsidiaries designated in such request to enter into and
deliver a guaranty of the Obligations, such guaranty to be in form
and substance satisfactory to the Majority Combined Lenders.
SECTION 7.02 Negative Covenants. The Borrower will not,
without the written consent of the Majority Combined Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any
of its Subsidiaries to create or suffer to exist, any Lien, other
than Permitted Liens and Liens upon or with respect to Margin
Stock.
(b) Debt. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Debt if, immediately
after giving effect to the incurrence of such Debt and the receipt
and application of any proceeds thereof, the Borrower and its
Subsidiaries, on a Consolidated basis, would be in violation of the
financial covenant specified in Section 7.03 hereof.
(c) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to, any
Person, or permit any of its Subsidiaries to do so, except that any
Subsidiary of the Borrower may merge or consolidate with or into,
or dispose of assets to, any other Subsidiary of the Borrower and
except that any Subsidiary of the Borrower may merge into or
dispose of assets to the Borrower and, subject to Section
7.02(d)(iii), the Borrower may merge or consolidate with or into,
and any Subsidiary of the Borrower may merge or consolidate with or
into, any other Person, provided in each case that, immediately
after giving effect to such proposed transaction, no Event of
Default or Default shall exist, and in the case of any merger or
consolidation to which the Borrower is a party, the Person into
which the Borrower shall be merged or formed by any such
consolidation shall be a corporation organized and existing under
the laws of the United States of America or any State thereof and
shall assume the Borrower's obligations hereunder in an agreement
or instrument in form and substance reasonably satisfactory to the
Agent.
(d) Asset Acquisition, Investments, Mergers.
(i) Asset Acquisitions. Purchase, or permit any of
its Subsidiaries to purchase, all or substantially all the
assets of any Person (an "Asset Acquisition") unless (A) if
such Asset Acquisition involves the purchase of Retail
Assets, the purchase price of the Retail Assets to be
purchased in such Asset Acquisition is less than 50% of the
book value of the Borrower's Consolidated Total Assets
immediately prior to such Asset Acquisition or (B) if such
Asset Acquisition involves the purchase of Non-Retail Assets,
the purchase price of the Non-Retail Assets to be purchased
in such Asset Acquisition is less than 25% of the book value
of the Borrower's Consolidated Total Assets immediately prior
to such Asset Acquisition and (C) immediately prior to and
after giving effect to such Asset Acquisition no Event of
Default or Default shall exist.
(ii) Investments. Make, or permit any of its
Subsidiaries to make, an investment in any Person by way of
the purchase of such Person's capital stock or securities or
the making of capital contributions with respect thereto (an
"Investment") unless (A) if such Investment is in a Person
predominantly engaged in the Retail Business, the purchase
price and dollar amount of capital contributions made with
respect to such Investment is less than 50% of the Borrower's
Consolidated Total Assets immediately prior to such
Investment or (B) if such Investment is in a Person engaged
predominantly in the Non-Retail Business, the purchase price
and dollar amount of capital contributions made with respect
to such Investment is less than 25% of the Borrower's
Consolidated Total Assets immediately prior to such
Investment and (C) such Investment is made with the
permission of the Board of Directors of the Person in whom
the Investment is being made and immediately prior to and
after giving effect to such Investment no Event of Default or
Default shall exist. The foregoing limitation shall not
restrict the Borrower's and its Subsidiaries' ability to make
investments in the instruments described in Schedule VI
hereto, as such Schedule may be amended from time to time by
the Borrower. The Borrower shall provide the Agent and each
Lender a copy of each change or amendment made to Schedule VI
hereto promptly after each such change or amendment thereof.
(iii) Mergers. Consummate, or permit the
consummation of, any merger or consolidation (regardless of
whether it is otherwise permitted by Section 7.02(c)) if
immediately after giving effect to such merger or
consolidation the book value of Consolidated Non-Retail
Assets of the surviving corporation is greater than 25% of
the book value of Borrower's Consolidated Total Assets, or
the book value of the Consolidated Retail Assets of the
surviving corporation is greater than 50% of the Borrower's
Consolidated Total Assets, in each case immediately prior to
such merger or consolidation provided, that, Subsidiaries of
the Borrower may merge into or with the Borrower or any other
Subsidiary of the Borrower without regard to the restrictions
of this Section 7.02(d)(iii).
(e) Change in Nature of Business. Make any material
change in the nature of the business of the Borrower and its
Subsidiaries as conducted as of the date hereof.
SECTION 7.03 Financial Covenant. The Borrower will not,
without the written consent of the Majority Combined Lenders, permit the
ratio of Debt on the last day of any Fiscal Quarter of the Borrower to
EBITDA for the period of four consecutive Fiscal Quarters of the Borrower
ending on such day to be greater than 3.00 to 1.00.
SECTION 7.04 Reporting Requirements. The Borrower will
furnish to the Lenders:
(i) as soon as available and in any event within 60 days
after the end of each of the first three Fiscal Quarters of the
Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarters and Consolidated
statements of income and retained earnings of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter,
certified by the chief financial officer or treasurer of the
Borrower and accompanied by a certificate of said officer stating
(i) that such have been prepared in accordance with generally
accepted accounting principles, (ii) whether or not he or she has
knowledge of the occurrence of any Event of Default or Default and,
if so, stating in reasonable detail the facts with respect thereto
and (iii) whether or not the Borrower is in compliance with the
requirements set forth in Section 7.03 (which certificate shall
contain the computations used by such chief financial officer in
determining such compliance or non-compliance);
(ii) as soon as available and in any event within 120 days
after the end of each Fiscal Year of the Borrower, a copy of the
annual report for such year for the Borrower and its Subsidiaries,
containing Consolidated financial statements of the Borrower and
its Subsidiaries for such Fiscal Year certified in a manner
acceptable to the Majority Combined Lenders by Deloitte & Touche
LLP or other independent public accountants reasonably acceptable
to the Majority Combined Lenders;
(iii) within 120 days after the end of each Fiscal Year of
the Borrower, a certificate of the chief financial officer or
treasurer of the Borrower stating (i) whether or not he or she has
knowledge of the occurrence of any Event of Default or Default and,
if so, stating in reasonable detail the facts with respect thereto,
and (ii) whether or not the Borrower is in compliance with the
requirements set forth in Section 7.03 (which certificate shall
contain the computations used by such chief financial officer in
determining such compliance or non-compliance);
(iv) as soon as possible and in any event within five days
after a Responsible Officer becomes aware of each Event of Default
and Default, a statement of a Responsible Officer of the Borrower
setting forth details of such Event of Default or Default and the
action which the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the sending or filing thereof, copies
of all reports which the Borrower sends to any of its security
holders, and copies of all reports and registration statements
which the Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(vi) promptly after the filing or receiving thereof,
copies of all reports and notices which the Borrower or any
Subsidiary files under ERISA with the Internal Revenue Service or
the Pension Benefit Guaranty Corporation or the U.S. Department of
Labor or which the Borrower or any Subsidiary receives from such
entities other than immaterial regular periodic notices and reports
and notices and reports of general circulation;
(vii) within 90 days after the end of each Fiscal Year of
the Borrower, a summary, prepared by a Responsible Officer of the
Borrower, of the Borrower's (and its Subsidiaries') major insurance
coverages (and the amount of self-insurance) then in effect; and
(viii) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as the Issuing Bank, or any Lender through the Agent,
may from time to time reasonably request.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower or any LC Subsidiary shall fail to pay
any principal of any Advance or any reimbursement obligation under
any Letter of Credit when the same becomes due and payable; or
shall fail to pay any interest on any Advance, fees or any other
amounts hereunder within two days after the same become due and
payable by it; or
(b) Any representation or warranty made by the Borrower
herein (whether made on behalf of itself, an LC Subsidiary or
otherwise) or by the Borrower (or any of its officers) in
connection with this Agreement shall prove to have been incorrect
in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) the
covenant contained in Section 7.03; or (ii) any term, covenant or
agreement contained in Section 7.02(c) or (d) for a period of five
days after written notice thereof shall have been given to the
Borrower by the Issuing Bank, the Agent or any Lender; or (iii) any
other term, covenant or agreement contained in this Agreement on
its part to be performed or observed if the failure to perform or
observe such other term, covenant or agreement shall remain
unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Issuing Bank, the Agent or any Lender;
or
(d) The Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $10,000,000 in the
aggregate (but excluding Debt hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Debt (other than any such Debt owed to a Lender or an Affiliate of
a Lender if such event or condition shall relate solely to a
restriction on the pledge or other disposition of Margin Stock
owned by the Borrower or any of its Subsidiaries); or any such Debt
shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower or any of
its Subsidiaries seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the
actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property) shall occur; or the
Borrower or any of its Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this subsection
(e); or
(f) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Borrower or any
of its Subsidiaries and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of ten consecutive days during which
a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) a Change of Control shall have occurred;
then, and in any such event, the Agent shall at the request, or may
with the consent, of the Majority Combined Lenders, by notice to
the Borrower, (A) declare the obligation of each A Lender to make
Advances to be terminated, whereupon the same shall forthwith
terminate, (B) declare the Advances, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower, (C) declare the
obligation of the Issuing Bank to issue further Letters of Credit
to be terminated, whereupon the same shall forthwith terminate,
and/or (D) demand from time to time that the Borrower, and if such
demand is made the Borrower shall, pay to the Agent for the benefit
of the Issuing Bank, an amount in immediately available funds equal
to the then outstanding Letter of Credit Liability (plus the
additional amounts specified by Section 3.12(c), if applicable)
which shall be held by the Agent (or the Issuing Bank) as cash
collateral in a cash collateral account under the exclusive control
and dominion of the Agent (or Issuing Bank) and applied to the
reduction of such Letter of Credit Liability as drawings are made
on outstanding Letters of Credit; provided, however, that in the
event of an actual or deemed entry of an order for relief with
respect to the Borrower or any of its Subsidiaries under the
Federal Bankruptcy Code, the obligation of each A Lender to make A
Advances shall automatically be terminated, the then outstanding
Advances, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower and the obligation of the Issuing
Bank to Issue Letters of Credit shall automatically be terminated.
ARTICLE IX
THE AGENT
SECTION 9.01 Authorization and Action. Each Lender and the
Issuing Bank hereby appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Advances), the Agent shall not be
required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the
Majority Combined Lenders, and such instructions shall be binding upon
all Lenders; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give
to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement unless the distribution of such
notice is otherwise provided for herein.
The Issuing Bank shall act on behalf of the LC Lenders with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the Agent
may elect to act for the Issuing Bank with respect thereto; provided,
however, that the Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this Article IX with respect to
any acts taken or omissions suffered by the Issuing Bank in connection
with Letters of Credit Issued by it or proposed to be Issued by it and
the applications and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent", as used in this
Article IX, included the Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with
respect to the Issuing Bank.
SECTION 9.02 Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Agent: (i) may treat the Lender which made any
Advance (or purchased or funded a participation with respect to a Letter
of Credit) as the holder and owner of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 10.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender
for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have
any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or to inspect the property (including the books and
records) of the Borrower or its Subsidiaries; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi)
shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 9.03 CUSA, Citibank and Affiliates. With respect
to CUSA's A Commitment, its LC Commitment and the Advances made by it,
and with respect to Citibank as Issuing Bank, CUSA and Citibank shall
have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent or Issuing
Bank, as the case may be; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include CUSA and Citibank in their
individual capacities. CUSA, Citibank and each of their respective
Affiliates (and, as applicable, any of their respective officers and
directors) may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with
or own securities of the Borrower or any such Subsidiary, all as if CUSA
were not the Agent or Citibank were not the Issuing Bank, as the case may
be, and without any duty to account therefor to the Lenders.
SECTION 9.04 Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Agent, the Issuing Bank or any other Lender and based on the financial
statements referred to in Section 6.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the Agent, the
Issuing Bank or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement.
SECTION 9.05 Indemnification. (a) Agent. The Lenders
agree to indemnify the Agent (to the extent not reimbursed by the
Borrower or any LC Subsidiary), ratably, according to their respective
Credit Exposures, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent
under this Agreement, provided, that, no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including reasonable counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings
or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is
not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs expenses or disbursements, this Section 9.05(a) applies
whether any such investigation, litigation or proceeding is brought by
the Agent, the Issuing Bank, any Lender or a third party.
(b) Issuing Bank. The LC Lenders agree to indemnify the
Issuing Bank (to the extent not reimbursed by the Borrower or any
LC Subsidiary), ratably according to their respective LC Commitment
Percentages, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Issuing Bank in any way relating to
or arising out of this Agreement and the Letters of Credit or any action
taken or omitted by the Issuing Bank under this Agreement or the Letters
of Credit, provided, that, no LC Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Issuing Bank's gross negligence or willful misconduct. Without
limitation of the foregoing, each LC Lender agrees to reimburse the
Issuing Bank promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by
the Issuing Bank in connection with the preparation, execution,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement or the
Letters of Credit, to the extent that the Issuing Bank is not reimbursed
for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs
expenses or disbursements, this Section 9.05(b) applies whether any such
investigation, litigation or proceeding is brought by the Issuing Bank,
the Agent, any Lender or a third party.
SECTION 9.06 Successor Agent/Issuing Bank (a) Agent. The
Agent may resign at any time by giving 30 days' prior written notice
thereof to the Lenders and the Borrower and may be removed at any time
with or without cause by the Majority Combined Lenders; provided, that,
the Agent may resign without having given such notice if it is required
to do so as a matter of law. Upon any such resignation or removal, the
Majority Combined Lenders, after consulting with the Borrower and giving
due consideration to any successor agent recommended by the Borrower,
shall have the right to appoint a successor Agent with the consent of the
Borrower (which shall not be unreasonably withheld). If no successor
Agent shall have been so appointed by the Majority Combined Lenders and
consented to by the Borrower, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation
or the Majority Combined Lenders' removal of the retiring Agent, then the
retiring Agent may, after consulting with the Borrower and giving due
consideration to any successor agent recommended by the Borrower, on
behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized or licensed to do business under the laws of
the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
(b) Issuing Bank. The Issuing Bank may be removed at
any time with or without cause jointly by the Majority Combined Lenders
and the Borrower. Upon any removal of the Issuing Bank, the Majority
Combined Lenders and the Borrower shall jointly have the right to appoint
a successor Issuing Bank. If no successor Issuing Bank shall have been
so appointed by the Majority Combined Lenders and the Borrower, and shall
have accepted such appointment, within 30 days after the removal of the
Issuing Bank, the Issuing Bank may, on behalf of the Lenders, appoint a
successor Issuing Bank, which shall be a commercial bank organized or
licensed to do business under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any appointment as Issuing
Bank, such successor Issuing Bank shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Issuing Bank, and the retiring Issuing Bank shall be discharged from its
duties and obligations under this Agreement, except with respect to
Letters of Credit outstanding at the time of such removal. After any
retiring Issuing Bank is removed hereunder as Issuing Bank, the
provisions of this Article IX shall inure to its benefit as to any
actions taken by it while it was Issuing Bank under this Agreement.
Notwithstanding the foregoing, the Issuing Bank may not be removed unless
prior to or contemporaneously with such removal it shall have received a
Dollar amount, in immediately available funds, equal to all outstanding
Letter of Credit Liability then outstanding and then owing to the
retiring Issuing Bank and shall have been indemnified by the Borrower,
the LC Lenders and such successor Issuing Bank, to the retiring Issuing
Bank's satisfaction, against all Letter of Credit Liability. The fee
letter referred to in Section 3.05(b) (or any replacement thereof) shall
continue to inure to the retiring Issuing Bank's benefit, and the
retiring Issuing Bank shall continue to be bound thereby, until such time
as all Letter of Credit Liability outstanding on the effective date of
the retiring Issuing Bank's removal has been discharged in full.
SECTION 9.07 Senior Managing Agents and Arranger. Neither
the Lenders identified as "Senior Managing Agents" nor the Arranger
herein shall have any right, power, obligation, responsibility or duty
under this Agreement other than, in the case of the Lenders so identified
as "Senior Managing Agents", those applicable to all Lenders as such.
Without limiting the foregoing, neither the Lenders so identified as
"Senior Managing Agents" nor the Arranger shall have or be deemed to
have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the
Lenders so identified as "Senior Managing Agents" or the Arranger in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments, Etc. (a) Majority Combined
Lenders. Except as is otherwise expressly provided in this
Section 10.01, no amendment or waiver of any provision of this Agreement,
nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Majority Combined Lenders.
(b) Majority A Lenders. The Majority A Lenders may (and
shall have the exclusive right to), in writing, amend, waive or consent
to any departure from Article II hereof (and the definitions used
exclusively therein) and Article IV hereof as it relates to the
A Advances, without the consent of the Majority Combined Lenders;
provided, however, that no amendment, waiver or consent (whether effected
by the Majority A Lenders pursuant to this subsection (b) or by the
Majority Combined Lenders pursuant to subsection (a)) shall, unless in
writing and signed by all the A Lenders, do any of the following: (i)
waive any of the conditions specified in Section 5.01 or 5.02 as they
relate to A Borrowings and A Advances, (ii) increase the A Commitments of
the A Lenders (other than as provided for in Section 2.05(b)) or subject
the A Lenders to any additional obligations, (iii) reduce the principal
of, or interest on, the A Advances or any fees or other amounts payable
hereunder to the A Lenders, (iv) postpone any date fixed for any payment
of principal of, or interest on, the A Advances or any fees or other
amounts payable hereunder to the A Lenders (other than as permitted by
Section 2.14), (v) change the percentage of the A Commitments or of the
aggregate unpaid principal amount of the A Advances, or the number of
A Lenders, which shall be required for the A Lenders or any of them to
take any action hereunder or (vi) amend this subsection (b) of this
Section 10.01.
(c) Majority LC Lenders. The Majority LC Lenders may (and
shall have the exclusive right to), in writing, amend, waive or consent
to any departure from Article III hereof (and the definitions used
exclusively therein) and Article IV hereof as it relates to the Letters
of Credit, without the consent of the Majority Combined Lenders;
provided, however, that no amendment, waiver or consent (whether effected
by the Majority LC Lenders pursuant to this subsection (c) or by the
Majority Combined Lenders pursuant to subsection (a)) shall, unless in
writing and signed by all the LC Lenders, do any of the following: (i)
waive any of the conditions specified in Section 5.01 or 5.02, as they
relate to the Issuance of Letters of Credit, (ii) increase the
LC Commitments of the LC Lenders (other than as provided for in Section
3.09) or subject the LC Lenders to any additional obligations, (iii)
reduce any amounts due hereunder or any fees or other amounts payable
hereunder with respect to the Letters of Credit to the LC Lenders or the
Issuing Bank, (iv) postpone any date fixed for any payment of any fees or
other amounts payable hereunder with respect to the Letters of Credit to
the LC Lenders or the Issuing Bank (other than as permitted by Section
3.11), (v) change the percentage of the LC Commitments or of the
aggregate unpaid Letter of Credit Liability hereunder, or the number of
LC Lenders, which shall be required for the LC Lenders or any of them to
take any action hereunder, (vi) release the Borrower from its obligation
to comply with Section 3.13 or (vii) amend this subsection (c) of this
Section 10.01.
(d) Agent and Issuing Bank. No amendment, waiver or
consent given or effected pursuant to this Section 10.01 shall, unless in
writing and signed by the Agent or the Issuing Bank, as the case may be,
in addition to the Lenders required above to take such action, affect the
rights, obligations or duties of the Agent or the Issuing Bank, as the
case may be, under this Agreement.
(e) Limitation of Scope. All waivers and consents granted
under this Section 10.01 shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 10.02 Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier) and mailed, sent by overnight courier, telecopied or
delivered, if to the Borrower, at its address at 900 Cherry Avenue, San
Bruno, CA 94066 Attention: Treasurer, Telecopier: 650-874-7809; if to
any Lender, at its Domestic Lending Office specified opposite its name on
Schedule I-B hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; if to the Agent, at its address at 399 Park Avenue, New
York, New York 10043, Attention: Credit Administration, Telecopier: 302-
894-6120; and if to the Issuing Bank, at its address at 399 Park Avenue,
New York, New York 10043, Attention: Letter of Credit Administration,
Telecopier: 800-934-9030; with a copy, in the case of notices to the
Agent or the Issuing Bank, to Citicorp North America, Inc., One Sansome
Street, San Francisco, California, Attention: Carolyn Wendler,
Telecopier: 415-433-0307, or, as to each party, at such other address or
to such other person as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall,
when mailed, be effective three days after being deposited in the mails,
when sent by overnight courier, be effective one day after being sent by
overnight courier, when telecopied or delivered to the telegraph company,
be effective when received or delivered to the cable company,
respectively; and when delivered by hand, be effective upon delivery
except that notices and communications to the Agent pursuant to
Article II or IX and to the Issuing Bank pursuant to Article III or IX
shall not be effective until received by the Agent or Issuing Bank, as
the case may be.
SECTION 10.03 No Waiver; Remedies. No failure on the part
of any Lender, the Issuing Bank or the Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10.04 Costs and Expenses. (a) The Borrower agrees
to pay on demand all costs and expenses of the Agent and the Issuing Bank
incurred in connection with the preparation, execution, delivery,
modification and amendment of this Agreement, and the other documents to
be delivered hereunder, including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for the Agent and Issuing Bank
with respect thereto and with respect to advising the Agent and Issuing
Bank as to their respective rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and
expenses of the Agent, the Issuing Bank and each Lender (including,
without limitation, reasonable counsel fees and expenses), incurred in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder, including, without limitation, reasonable counsel
fees and expenses in connection with the enforcement of their respective
rights hereunder.
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made other than on the last day of the
Interest Period for such A Advance, as a result of a payment or
Conversion pursuant to Section 2.05(b), 2.09(d), 2.11, 2.13 or 2.14 or
acceleration of the maturity of the Advances pursuant to Section 8.01 or
for any other reason, the Borrower shall, upon demand by any A Lender
(with a copy of such demand to the Agent), pay to the Agent for the
account of such A Lender any amounts required to compensate such A Lender
for any additional losses, costs or expenses which it may reasonably
incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by any A Lender to fund or maintain such
A Advance.
(c) The Borrower agrees to indemnify and hold harmless each
of the Agent, each Lender and the Issuing Bank and each of their
Affiliates and their respective officers, directors, employees, agents
and advisors (each, an "Indemnified Party") from and against any and "
all claims, damages, liabilities and expenses (including, without
limitation, reasonable fees and disbursements of counsel), which may be
incurred by or asserted against any Indemnified Party in connection with
or arising out of any investigation, litigation, or proceeding (whether
or not such Indemnified Party is party thereto) related to any
acquisition or proposed acquisition by the Borrower, or by any Subsidiary
of the Borrower, of all or any portion of the stock or substantially all
the assets of any Person or any use or proposed use of the Advances or
Letters of Credit by the Borrower or any LC Subsidiary, except to the
extent such claim, damage, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the event this indemnity is unenforceable as a matter of
law as to a particular matter or consequence referred to herein, it shall
be enforceable to the full extent permitted by law. The indemnification
provisions set forth above shall be in addition to any liability the
Borrower may otherwise have. Without prejudice to the survival of any
other obligation of the Borrower hereunder, the indemnities and
obligations of the Borrower contained in this Section 10.04 shall survive
the payment in full of all the Obligations.
(d) The Borrower hereby acknowledges that the funding
method by each Lender of its Advances hereunder shall be in the sole
discretion of such Lender. The Borrower agrees that for purposes of any
determination to be made under Sections 2.08, 2.12(a), 2.13 or 10.04(b)
of this Agreement each Lender shall be deemed to have funded its
Eurodollar Rate Advances with proceeds of Dollar deposits in the London
interbank market.
SECTION 10.05 Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of
the request or the granting of the consent specified by Section 8.01 to
authorize the Agent to declare the Advances due and payable pursuant to
the provisions of Section 8.01 or to demand payment of (or cash
collateralization of) all then outstanding Letter of Credit Liability,
each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower or any LC Subsidiary against any and all of the
obligations of the Borrower or any LC Subsidiary now or hereafter
existing under this Agreement to such Lender (including, to the fullest
extent permitted by law, obligations indirectly owed to such Lender by
virtue of its purchase of a participation or sub-participation of the
Letter of Credit Liability pursuant to Section 3.04), whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower and the Agent after any such set-off and application made by
such Lender or any of its Affiliates, provided, that, the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender and its Affiliates
may have.
SECTION 10.06 Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, each
LC Subsidiary to be a party hereto on the date hereof, the Issuing Bank
and the Agent and when the Agent shall have been notified by each Lender
that such Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, each LC Subsidiary, the Issuing
Bank, the Agent and each Lender and their respective successors and
assigns, except that the Borrower and each LC Subsidiary shall not have
the right to assign its respective rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 10.07 Assignments and Participations. (a) Each
Lender may, and if demanded by the Borrower (following a demand by such
Lender pursuant to Section 2.08, 2.12, 3.07, 4.02 or 4.06, after such
Lender has declined to vote in favor of extension of the Revolver
Termination Date or LC Termination Date, as the case may be, pursuant to
Section 2.14 or 3.11, or after any Lender has assigned all or any portion
of its rights and obligations under this Agreement to any Affiliate
without the consent of the Borrower, upon at least 10 days' notice to
such Lender and the Agent) will, assign to one or more banks or other
entities all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion, respectively,
of its A Commitment and the A Advances owing to it and/or of its LC
Commitment and participations in Letter of Credit Liability); provided,
however, that (i) each such respective assignment shall be of a
percentage of all rights and obligations under this Agreement (other than
any B Advances) (w) in respect of the assigning A Lender's A Commitment
and A Advances and/or (x) in respect of the assigning Lender's LC
Commitment and participations in Letter of Credit Liability, as the case
may be, that is constant and not varying over time, (ii) the respective
amounts of the rights and obligations (y) under the A Commitment and A
Advances of the assigning A Lender and/or (z) under the LC Commitment and
participations in Letter of Credit Liability of the assigning lender, as
the case may be, being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect
to such partial assignment) shall in no event be less than 5% of all such
rights and obligations or less than $5,000,000 (or an integral multiple
of $500,000 in excess thereof), as the case may be, in the case of each
of (y) and/or (z), (iii) each such assignment shall be to an Eligible
Assignee consented to by the Borrower (which shall not unreasonably
withhold its consent); provided, that, the Borrower's consent need not be
obtained if such assignment is made to an Affiliate of the assigning
Lender, provided that any Lender so assigning to any of its Affiliates
shall give prompt notice thereof to the Borrower and the Agent, (iv) each
such assignment made as a result of a demand by the Borrower pursuant to
this Section 10.07(a) shall be arranged by the Borrower (at its expense,
including, without limitation, payment of the processing and recordation
fee referred to in subclause (vi) hereof) after consultation with the
Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment
of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments which together cover
all of the rights and obligations of the assigning Lender under this
Agreement, (v) no Lender shall be obligated to make any such assignment
as a result of a demand by the Borrower pursuant to this Section 10.07(a)
unless and until such Lender shall have received one or more payments
from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the
parties to each such assignment shall execute and deliver to the Agent,
for its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of $2,000;
provided, that, no such fee shall be payable in connection with an
assignment by an assigning Lender to an Affiliate of such assigning
Lender. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto). Without limiting the
qualifications set forth in the first sentence of this Section 10.07(a),
but to clarify such sentence, any Lender having both an A Commitment and
an LC Commitment may assign all or a portion of its rights and
obligations relating to one of these commitments and at the same time
assign none, all, the same portion or a different portion of its rights
and obligations relating to the other commitment, provided that any
assignment of any portion (including all) of a Lender's rights and
obligations relating to its A Commitment shall include an assignment of
the same portion (including all if applicable) of such Lender's rights
and obligations relating to its A Advances and any assignment of any
portion (including all) of a Lender's rights and obligations relating to
its LC Commitment shall include an assignment of the same portion
(including all if applicable) of such Lender's rights and obligations
relating to participations in Letter of Credit Liability.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any LC Subsidiary or the performance or
observance by the Borrower or any LC Subsidiary of any of its obligations
under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements
referred to in Section 6.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, the Issuing Bank, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent or the Issuing Bank
to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent or the Issuing Bank by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 10.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the LC Commitment of and A Commitment of,
and principal amount of the Advances owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower,
the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is
an Eligible Assignee, the Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit B hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the Borrower and the Issuing Bank.
(e) Each Lender may assign or participate to one or more
banks or other entities any B Advance held by it without regard to any of
the restrictions placed on assignments elsewhere in this Section 10.07 or
this Agreement; provided, that, any participation shall be made in
accordance with subsection (f) hereof and provided, further, that any
assignee of a B Advance that is not then a Lender hereunder shall not be
entitled to demand any payments under Section 2.08, 2.12 or 4.02 hereof
and shall have no voting rights or other rights of a Lender hereunder
other than the right to demand and receive interest and principal
payments at the times when due with respect to the B Advance owned by it.
(f) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its A Commitment and LC Commitment and the Advances owing to
it; provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its A Commitment to the
Borrower hereunder and LC Commitment) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the
owner of any Advance for all purposes of this Agreement, and (iv) the
Borrower, the Issuing Bank, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, provided,
further, that, to the extent of any such participation (unless otherwise
stated therein and subject to the preceding proviso), the purchaser of
such participation shall, to the fullest extent permitted by law, have
the same rights and benefits hereunder as it would have if it were a
Lender hereunder; and provided, further, that each such participation
shall be granted pursuant to an agreement providing that the purchaser
thereof shall not have the right to consent or object to any action by
the selling Lender (who shall retain such right) other than an action
which would (i) reduce principal of or interest on any Advance, any
amount due hereunder with respect to the Letters of Credit or other
amounts or fees in which such purchaser has an interest, (ii) postpone
any date fixed for payment of principal of or interest on any such
Advance, such amounts due with respect to Letters of Credit or other
amounts or such fees, or (iii) extend the LC Termination Date or the
Revolver Termination Date, as the case may be.
(g) Upon written request of the Borrower to an A Lender,
such A Lender shall, to the extent consistent with the policies of such
A Lender, inform the Borrower of the Dollar amount of any Full Term
Participation (as hereinafter defined) that such A Lender has entered
into; provided, however, that no A Lender shall be obligated to disclose
such information if the disclosure thereof would constitute a violation
of law or regulation or violate any confidentiality agreement to which
such A Lender is subject. For the purposes of this subsection (g),
"Full Term Participation" means a participation by an A Lender to
another Person whereby such other Person has purchased (pursuant to a
participation agreement) all or a portion of such A Lender's A Commitment
from the effective date of such participation agreement to the Revolver
Termination Date.
(h) Notwithstanding anything herein contained to the
contrary, each Lender may assign any of its rights and obligations under
this Agreement to any of its Affiliates without the consent of the
Borrower or the Agent, provided that any Lender so assigning to any of
its Affiliates shall give prompt notice thereof to the Borrower and the
Agent; and each Lender or any of its Affiliates may assign any of its
rights (including, without limitation, rights to payment of principal
and/or interest hereunder) under this Agreement to any Federal Reserve
Bank without notice to or consent of the Borrower or the Agent.
SECTION 10.08 Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.09 Independence of Provisions. All agreements
and covenants hereunder shall be given independent effect such that if a
particular action or condition is prohibited by the terms of any such
agreement or covenant, the fact that such action or condition would be
permitted within the limitations of another agreement or covenant shall
not be construed as allowing such action to be taken or condition to
exist.
SECTION 10.10 Confidentiality. Each Lender, the Issuing
Bank and the Agent agrees that it will not disclose to any third party
any written information marked "Confidential" provided to it by the
Borrower; provided, that, the foregoing will not (i) restrict the ability
of the Agent, the Issuing Bank, the Lenders and any loan participants
from freely exchanging such information among themselves (and their
respective employees, attorneys, agents and advisors), (ii) restrict the
ability to disclose such information to a prospective Eligible Assignee
or participant, provided, that, such Eligible Assignee or participant
executes a confidentiality agreement with the selling Lender agreeing to
be bound by the terms hereof prior to disclosure of such information to
such Eligible Assignee or participant or (iii) prohibit the disclosure of
such information to the extent such information (a) becomes publicly
available, (b) becomes available through a Person not a Subsidiary,
(c) is required to be disclosed pursuant to court order, subpoena, other
legal process, regulatory request or otherwise by law or (d) is disclosed
in litigation with the Borrower or any of its Subsidiaries.
SECTION 10.11 Headings. Article and Section headings in
this Agreement are included for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
SECTION 10.12 Entire Agreement. This Agreement sets forth
the entire agreement of the parties with respect to its subject matter
and, except for the letter agreement referred to in Sections 2.04(c) and
3.05(b), supersedes all previous understandings, written or oral, in
respect thereof.
SECTION 10.13 Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute
one and the same agreement.
SECTION 10.14 Consent to Jurisdiction. (a) Each of the
parties hereto hereby irrevocably submits to the jurisdiction of any New
York State or Federal court sitting in the County of New York, The City
of New York, in any action or proceeding arising out of or relating to
this Agreement, and each of the parties hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in such New York State court or such Federal court. Each of
the parties hereby irrevocably agrees, to the fullest extent each may
effectively do so, that each will not assert any defense that such courts
do not have subject matter or personal jurisdiction of such action or
proceeding or over any party hereto. Each of the parties hereby
irrevocably consents to the service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding by certified mail, return receipt requested, or by delivering
of a copy of such process to such party at its address specified in
Section 10.02 or by any other method permitted by law. Each of the
parties hereby agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or by any other manner provided by law.
(b) Nothing in this Section 10.14 shall affect the right of
any of the parties hereto to serve legal process in any other manner
permitted by law or affect the right of any of the parties to bring any
action or proceeding against any of the parties or their property in the
courts of other jurisdictions.
SECTION 10.15 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, EXCEPT, IN THE CASE OF ARTICLE III, TO THE EXTENT SUCH LAWS ARE
INCONSISTENT WITH THE UCP.
SECTION 10.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE LC SUBSIDIARIES, THE AGENT, THE LENDERS AND THE ISSUING BANK HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE ADVANCES OR THE LETTERS OF CREDIT, OR THE ACTIONS OF THE
AGENT, ANY LENDER OR THE ISSUING BANK IN CONNECTION WITH THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWER:
THE GAP, INC.
By /s/ Warren R. Hashagen
Name: Warren R. Hashagan
Title: Senior Vice President and Chief Financial Officer
THE LC SUBSIDIARIES:
BANANA REPUBLIC, INC.
GPS (U.S.A.) LIMITED
GAP (CANADA) INC.
OLD NAVY INC.
GPS CONSUMER DIRECT, INC.
By /s/ Warren R. Hashagen
Name: Warren R. Hashagan
Title: Senior Vice President and Chief Financial Officer
GAP INTERNATIONAL SOURCING LIMITED
GAP INTERNATIONAL SOURCING PTE. LTD.
GAP (JAPAN) K.K.
GAP INTERNATIONAL SOURCING (HOLDINGS) LIMITED
GAP (NETHERLANDS) B.V.
By /s/ Warren R. Hashagen
Name: Warren R. Hashagan
Title: Director
THE AGENT:
CITICORP USA INC.
By /s/ Carolyn Wendler
Name: Carolyn Wendler
Title: Managing Director
THE ARRANGER:
SALOMON SMITH BARNEY INC.
By /s/ Steven R. Victorin
Name: Steven R. Victorin
Title: Attorney-in-fact
THE SENIOR MANAGING AGENTS:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By ___/s/James Johnson__________
Name: James Johnson
Title: Managing Director
HSBC BANK USA
By ____/s/ Douglas F. Stolberg___
Name: Douglas F. Stolberg
Title:Senior Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By ____/s/ Robert Bottamedi______
Name: Robert Bottamedi
Title:Vice President
THE LENDERS:
CITICORP USA INC.
By /s/ Carolyn A. Wendler
Name: Carolyn A. Wendler
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By ______/s/ James P. Johnson_______
Name: James P. Johnson
Title: Managing Director
HSBC BANK USA
By ____/s/ Douglas F. Stolberg______
Name: Douglas F. Stolberg
Title:Senior Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By ____/s/ Robert Bottamedi_________
Name: Robert Bottamedi
Title:Vice President
BANK OF MONTREAL
By _____/s/ Leon H. Sinclair__________
Name: Leon H. Sinclair
Title: Director
ABN AMRO BANK N.V.
By _____/s/ Paul K. Stimpfl /s/ Ellen M. Coleman
Name: Paul K. Stimpfl Ellen M. Coleman
Title: Group Vice President Vice President
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
By ___/s/ Hans-Josef Thiele_________
Name: Hans-Josef Thiele
Title: Director
SOCIETE GENERALE
By ____/s/ Robert Peterson___________
Name: Robert Peterson
Title:Vice President
THE SUMITOMO BANK LIMITED
By ____/s/ Azar Shakeri____________
Name: Azar Shakeri
Title:Vice-President
THE FIRST NATIONAL BANK OF CHICAGO
By ____/s/ Eva Drinis_______________
Name: Eva Drinis
Title:Corporate Banking Officer
FLEET BANK
By ___/s/ Christopher J. Kampe________
Name: Christopher J. Kampe
Title:Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION
By ____/s/ Alfred Artis________________________
Name: Alfred Artis
Title:Vice President
THE BANK OF NEW YORK
By ____/s/ Howard F. Bascom______________________________
Name: Howard F. Bascom
Title:Vice President
THE FUJI BANK, LIMITED
By _____/s/ Masahito Fukuda___________
Name: Masahito Fukuda
Title: Senior Vice President
ROYAL BANK OF CANADA
By _____/s/ Gordon C. MacArthur_____________________________
Name: Gordon C. MacArthur
Title: Senior Manager
U.S. BANK NATIONAL ASSOCIATION
By _____/s/ Janet E. Jordan_____________________________
Name: Janet E. Jordan
Title: Vice President
THE ISSUING BANK:
CITIBANK, N.A.
By /s/ Marjorie Futornick
Name: Marjorie Futornick
Title: Vice President
Schedule I-A
COMMITMENTS
Lender A Commitment ($) LC Commitment ($)
Citicorp USA Inc. 35,000,000.00 53,421,052.64
Bank of America National Trust and
Savings Association 28,173,374.61 40,247,678.02
HSBC Bank USA 29,148,606.81 41,640,866.86
Morgan Guaranty Trust Company of
New York 29,148,606.81 41,640,866.86
Bank of Montreal 23,513,931.89 33,591,331.27
ABN AMRO Bank N.V. 22,538,699.69 32,198,142.42
Deutsche Bank AG New York Branch
and/or Cayman Islands Branch 22,538,699.69 32,198,142.42
Societe Generale 22,538,699.69 32,198,142.42
The Sumitomo Bank Limited 23,947,368.42 30,789,473.68
The First National Bank of Chicago 16,904,024.77 24,148,606.81
Fleet Bank 16,904,024.77 24,148,606.81
Wells Fargo Bank, National
Association 16,904,024.77 24,148,606.81
The Bank of New York 16,904,024.77 24,148,606.81
The Fuji Bank, Limited 15,278,637.77 21,826,625.39
Royal Bank of Canada 15,278,637.77 21,826,625.39
U.S. Bank National Association 15,278,637.77 21,826,625.39
TOTAL 350,000,000.00 500,000,000.00
Schedule I-B
LIST OF APPLICABLE LENDING OFFICES
Lender Domestic Lending Office Eurodollar Lending Office
Citicorp USA Inc./
Citibank, N.A.
2 Penns Way
New Castle, DE 19720
Attn: Tim Smith
Tel: 302-894-6059
Fax: 302-894-6120
2 Penns Way
New Castle, DE 19720
Attn: Tim Smith
Tel: 302-894-6059
Fax: 302-894-6120
Bank of America
National Trust and
Savings Association
1850 Gateway Boulevard
Concord, CA 94520
Attn: Joyce Drumgoole,
Credit Services
Tel: 925-675-8245
Fax: 925-675-7531
1850 Gateway Boulevard
Concord, CA 94520
Attn: Joyce Drumgoole,
Credit Services
Tel: 925-675-8245
Fax: 925-675-7531
HSBC Bank USA
The Hongkong and Shanghai
Banking Corporation
Limited
140 Broadway, 4th Floor
New York, NY 10005-1196
Attn: Anastasia
Micklethwaite
Tel: 212-658-1403
Fax: 212-658-2804
The Hongkong and Shanghai
Banking Corporation
Limited,
London Head Office
P.O. Box 199
10 Lower Thames Street
London EC3R 6HH
United Kingdom
Attn: 3rd Floor,
Eurodollar Lending Office
Fax: 011-44-171-260-
0930
Morgan Guaranty Trust
Company of New York
60 Wall Street
New York, NY 10260-0060
c/o J.P. Morgan Services
Inc.
Euro-Loan Servicing Unit
500 Stenton Christiana
Road
Newark, DE 19713
Fax: 302-634-1094
Bank of Montreal
115 South LaSalle Street,
11th Floor
Chicago, IL 60603
Attn: Betty Rutherford
Tel: 312-750-3885
Fax: 312-750-6061
115 South LaSalle Street,
11th Floor
Chicago, IL 60603
Attn: Betty Rutherford
Tel: 312-750-3885
Fax: 312-750-6061
ABN AMRO Bank N.V.
208 South LaSalle, Suite
1500
Chicago, IL 60604-1003
Attn: Credit
Administration
Tel: 312-992-5110
Fax: 312-992-5111
208 South LaSalle, Suite
1500
Chicago, IL 60604-1003
Attn: Credit
Administration
Tel: 312-992-5110
Fax: 312-992-5111
Deutsche Bank AG New
York Branch and/or
Cayman Islands Branch
31 West 52nd Street, 13th
Floor
New York, NY 10019
Attn: Hans-Josef
Thiele
Tel: 212-469-8649
Fax: 212-469-8212
1251 6th Avenue, 26th
Floor
New York, NY 10019
Attn: Hans-Josef
Thiele
Tel: 212-469-8649
Fax: 212-469-8212
Societe Generale
1221 Avenue of the
Americas
New York, NY 10020
Attn: Robert Petersen
Tel: 212-278-7037
Fax: 212-278-7997
1221 Avenue of the
Americas
New York, NY 10020
Attn: Robert Petersen
Tel: 212-278-7037
Fax: 212-278-7997
The Sumitomo Bank
Limited
277 Park Avenue
New York, NY 10172
Fax: 212-224-5197
277 Park Avenue
New York, NY 10172
Fax: 212-224-5197
The First National Bank
of Chicago
One First National Plaza
Chicago, IL 60670
Attn: Robert Simon
Tel: 312-732-8543
Fax: 312-732-4840
One First National Plaza
Chicago, IL 60670
Attn: Robert Simon
Tel: 312-732-8543
Fax: 312-732-4840
Fleet Bank
One Federal Street
Boston, MA 02110
Attn: Dwayne Nelson or
Michael Aranjo
Tel: 617-346-4223
Fax: 617-346-0595
One Federal Street
Boston, MA 02110
Attn: Dwayne Nelson or
Michael Aranjo
Tel: 617-346-4223
Fax: 617-346-0595
Wells Fargo Bank,
National Association
420 Montgomery Street, 9th
Floor
San Francisco, CA 94104
Attn: Gretchen Sleeper
Tel: 415-222-3512
Fax: 415-975-7355
420 Montgomery Street, 9th
Floor
San Francisco, CA 94104
Attn: Gretchen Sleeper
Tel: 415-222-3512
Fax: 415-975-7355
The Bank of New York
One Wall Street, 8th Floor
New York, NY 10286
Attn: Charlotte Sohn
Tel: 212-635-7689
One Wall Street, 8th Floor
New York, NY 10286
Attn: Charlotte Sohn
Tel: 212-635-7689
The Fuji Bank, Limited
333 South Hope Street,
39th Floor
Attn: Tami Kita
Tel: 213-253-4163
Fax: 213-253-4178
333 South Hope Street,
39th Floor
Attn: Tami Kita
Tel: 213-253-4163
Fax: 213-253-4178
Royal Bank of Canada
One Liberty Plaza, 4th
Floor
New York, NY 10006-1404
Attn: Manager, Loans
Administration
Tel: 212-428-6321
Fax: 212-428-2372
One Liberty Plaza, 4th
Floor
New York, NY 10006-1404
Attn: Manager, Loans
Administration
Tel: 212-428-6321
Fax: 212-428-2372
U.S. Bank National
Association
555 S.W. Oak Street, PL-4
Portland, Oregon 97204
Attn: Janet E. Jordan,
Vice President
Tel: 503-275-5871
Fax: 503-275-5428
555 S.W. Oak Street, PL-4
Portland, Oregon 97204
Attn: Janet E. Jordan,
Vice President
Tel: 503-275-5871
Fax: 503-275-5428
Schedule II
EXISTING LIENS
None
Schedule III
CHANGE OF CONTROL
1. Donald G. Fisher
2. Doris Fisher
3. Millard S. Drexler
4. Any person related by blood or marriage to any of the foregoing persons
and any trust as to which any of such persons has beneficial ownership
of the assets of the trust.
5. The executive officers of The Gap, Inc. as of June 29, 1999.
Schedule IV
OUTSTANDING BALANCE OF EXISTING LETTERS OF CREDIT
$450,000,000
Schedule V
LC SUBSIDIARIES
(As of date of this Agreement)
1. Banana Republic, Inc.
2. GPS (U.S.A.) Limited
3. Gap (Canada) Inc.
4. Gap International Sourcing Limited
5. Gap International Sourcing Pte. Ltd.
6. Gap (Japan) K.K.
7. Gap International Sourcing (Holdings) Limited
8. Gap (Netherlands) B.V.
9. Old Navy Inc.
10. GPS Consumer Direct, Inc.
Schedule VI
PERMITTED INVESTMENTS
1. Obligations issued or guaranteed by the United States Government.
2. Commercial paper of issuers having a rating of P-1 by Moodys or A-1 by
S&P or a rating of not less than P-2 by Moodys and A-2 by S&P.
3. Banker's acceptances, certificates of deposit and eurodollar time
deposits (including bank money market funds) from commercial banks with
commercial paper ratings (or equivalent long-term debt ratings) as
specified in 2 above.
4. Tax-exempt securities rated Aaa by Moodys or AAA by S&P or Aa by Moodys
or AA by S&P or A by Moodys or A by S&P.
5. Secured repurchase agreements involving any of the instruments referred
to in 1-4 above and having the ratings specified in 1-4 above, as
applicable, with an institution or institutions whose commercial paper
(or long term debt rating) satisfies the criteria specified in 2 above.
6. Money market preferred stock (not issued by a thrift, saving and loans
institution or analogous institution) rated Aaa by Moodys or AAA by S&P.
7. Loan participations purchased from major money center banks provided
the borrower associated with such participation has a long-term debt
rating of P-1 by Moodys or A-1 by S&P or P-2 by Moodys and A-2 by S&P.
Moodys = Moody's Investors Service, Inc.
S&P = Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies,
Inc.
Schedule VII
PLANS:
GapShare Plan
Employee Benefit Premium Payment Plan - (Pre-tax employee contributions under
medical, dental plans)
Life Insurance and Accidental Death and Dismemberment Plan
Health Insurance Plan (HMOs and Employee Assistance Plan)
Short Term Disability Plan
Long Term Disability Plan
Tuition Reimbursement Program
Vision Care Plan
Gap Inc. Medical and Dental Plans
EXHIBIT A-1
NOTICE OF A BORROWING
Citicorp USA Inc., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, The Gap, Inc., refers to the Amended and Restated
Credit Agreement, dated as of June 29, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain of the undersigned's Subsidiaries, certain
Lenders parties thereto, Citibank, N.A., as Issuing Bank, certain Senior
Managing Agents parties thereto, Salomon Smith Barney Inc. as Arranger, and
Citicorp USA Inc., as Agent for said Lenders, and the Issuing Bank, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests an A Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such A Borrowing (the "Proposed A Borrowing") as required by Section 2.02(a)
of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is , .
(ii) The Type of A Advances comprising the Proposed A
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$ .
(iv) The Interest Period for each A Advance made as part
of the Proposed A Borrowing is [ month[s]].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(A) the representations and warranties contained in Section
6.01 of the Credit Agreement are correct, before and after giving effect
to the Proposed A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or Default.
Very truly yours,
THE GAP, INC.
By
Name:
Title:
EXHIBIT A-2
NOTICE OF B BORROWING
Citicorp USA Inc., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, The Gap, Inc., refers to the Amended and Restated
Credit Agreement, dated as of June 29, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain of the undersigned's Subsidiaries, certain
Lenders parties thereto, Citibank, N.A., as Issuing Bank, certain Senior
Managing Agents parties thereto, Salomon Smith Barney Inc. as Arranger, and
Citicorp USA Inc., as Agent for said Lenders, and the Issuing Bank, and hereby
gives you notice pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a B Borrowing under the Credit Agreement, and in
that connection sets forth the terms on which such B Borrowing (the "Proposed
B Borrowing") is requested to be made:
(A) Date of B Borrowing
(B) Amount of B Borrowing
(C) Maturity Date
(D) Interest Rate Basis
(E) Interest Payment Date(s)
(F)
(G)
(H)
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in Section
6.01 of the Credit Agreement are correct, before and after giving effect
to the Proposed B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed B Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that has been
provided to the Agent and each Lender by the undersigned in connection
with the Credit Agreement would, taken as a whole, include an untrue
statement of a material fact or omit to state any material fact or any
fact necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading; and
(d) the aggregate amount of the Proposed B Borrowing and all
other Borrowings to be made on the same day under the Credit Agreement
is within the aggregate amount of the unused A Commitments of the A
Lenders.
The undersigned hereby confirms that the Proposed B Borrowing is to
be made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
THE GAP, INC.
By
Name:
Title:
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated ,
Reference is made to the Amended and Restated Credit Agreement,
dated as of June 29, 1999 (the "Credit Agreement"), among The Gap, Inc., a
Delaware corporation (the "Borrower"), certain Subsidiaries of the Borrower,
as "LC Subsidiaries", the Lenders (as defined in the Credit Agreement),
Citibank, N.A., as Issuing Bank, certain Senior Managing Agents parties
thereto, Salomon Smith Barney Inc. as Arranger, and Citicorp USA Inc., as
Agent for the Lenders and Issuing Bank (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meaning.
(the "Assignor") and (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, such respective
interests in and to all of the Assignor's rights and obligations under the
Credit Agreement as of the date hereof (other than in respect of B Advances)
which represent the respective percentage interests specified on Schedule 1 of
all outstanding rights and obligations under the Credit Agreement (other than
in respect of B Advances) in respect of (i) the Assignor's A Commitment and
the A Advances owing to the Assignor and/or (ii) the LC Commitment and
participations in Letter of Credit Liability of the Assignor. After giving
effect to such sale and assignment, (x) the Assignee's A Commitment and the
amount of the A Advances owing to the Assignee and (y) such Assignee's
LC Commitment and participations in Letter of Credit Liability will be as set
forth, respectively, in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interests being assigned by it hereunder and
that such interests are free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any LC Subsidiary or the performance or
observance by the Borrower or any LC Subsidiary of any of its respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 6.01 thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Issuing Bank, the
Assignor or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (iii) confirms that
it is an Eligible Assignee; (iv) appoints and authorizes the Agent and the
Issuing Bank to take such action on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent and the Issuing Bank
by the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; [and] (vi) specifies as its Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the offices set
forth beneath its name on the signature pages hereof [and (vii) attaches the
forms prescribed by the Internal Revenue Service of the United States
certifying as to the Assignee's status for purposes of determining exemption
from United States withholding taxes with respect to all payments to be made
to the Assignee under the Credit Agreement or such other documents as are
necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty].*
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the Agent for
acceptance and recording by the Agent. The effective date of this Assignment
and Acceptance shall be the date of acceptance thereof by the Agent, unless
otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make (and shall direct the Issuing
Bank to make) all payments under the Credit Agreement in respect of the
interests assigned hereby (including, without limitation, all payments of
principal, interest and utilization fees, facility fees and letter of credit
facility fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
Schedule 1
to
Assignment and Acceptance
Dated ,
Section 1.
Percentage Interest in A Commitment and A Advances:
Percentage Interest in LC Commitment and participations in Letter of
Credit Liability:
Section 2.
Assignee's A Commitment: $
Assignee's LC Commitment $
Aggregate outstanding principal amount of A Advances owing to Assignee: $
Aggregate outstanding amount of Assignee's
participations in Letter of Credit Liability: $
Section 3.
Effective Date*: , ____
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this day
of ,
CITICORP USA, INC., as Agent
By:
Title:
EXHIBIT E-1
FORM OF A BORROWING PROMISSORY NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, The Gap, Inc., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[_________________________] (the 'Lender') for the account of its Applicable
Lending Office on the Revolver Termination Date (as those terms are defined in
the Credit Agreement referred to below) the aggregate principal amount of the
A Advances (as defined below) owing to the Lender by the Borrower pursuant to
the Amended and Restated Credit Agreement dated as of June 29, 1999 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; terms defined therein, unless otherwise
defined herein, being used herein as therein defined), among the Borrower,
certain subsidiaries of the Borrower, the Lender and certain other banks and
financial institutions party thereto as Lenders, Citibank, N.A., as Issuing
Bank, Bank of America National Trust and Savings Association, HSBC Bank USA
and Morgan Guaranty Trust Company of New York, as Senior Managing Agents,
Salomon Smith Barney Inc., as Arranger, and Citicorp USA Inc. ("CUSA"), as
Agent.
The Borrower also promises to pay interest on the unpaid principal
amount of each A Advance from the date of such A Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement. Both principal and interest are
payable in lawful money of the United States of America to CUSA, as Agent, at
399 Park Avenue, New York, New York 10043 (or at such other address as the
Agent may specify to the Borrower in writing) in same day funds, free and
clear of and without any deduction, with respect to the payee named above,
subject to Section 4.02 of the Credit Agreement, for any and all present and
future taxes, deductions, charges or withholdings, and all liabilities with
respect thereto.
The Lender is authorized to record the date of each A Advance or
Conversion or continuation thereof, each payment or prepayment of principal
with respect thereto and, in the case of Eurodollar Rate Advances, each
Interest Period and the interest rate applicable thereto, in the Lender's
internal records and, prior to any transfer hereof, on a schedule annexed
hereto and made a part hereof, and any such notation shall constitute prima
facie evidence of the accuracy of the information so recorded.
This Promissory Note is issued pursuant to Section 2.02(f) of, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "A
Advances") by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each such A
Advance being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States, without
reference to principles of conflicts of laws other than New York General
Obligations Law section 5-1401.
THE GAP, INC.
By
Title:
EXHIBIT E-2
FORM OF AUCTION BORROWING NOTE
$ ___________ Dated: ____________, ____
FOR VALUE RECEIVED, the undersigned, THE GAP, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of ____________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to
below), on _________, ____, the principal amount of
_______________________ Dollars ($ ________).
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal amount
is paid in full, at the interest rate and payable on the interest payment
date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed).
[Insert variable calculation if applicable]
Interest Payment Date or Dates:
____________________________________________
Both principal and interest are payable in lawful money of
the United States of America to ___________________________ for the
account of the Lender at the office of ____________________________, at
___________________________________________, in same day funds, free and
clear of and without any deduction, with respect to the payee named
above, subject to Section 4.02 of the Credit Agreement referred to below,
for any and all present and future taxes, deductions, charges or
withholdings, and all liabilities with respect thereto.
This Promissory Note is one of the promissory notes
referred to in Section 2.03(f) of the Amended and Restated Credit
Agreement, dated as of June 29, 1999, among the Borrower, the Lenders
party thereto, Citibank, N.A., as Issuing Bank, certain Senior Managing
Agents parties thereto, Salomon Smith Barney Inc., as Arranger, and
Citicorp USA Inc., as Agent for the Lender and such other Lenders and the
Issuing Bank (such Credit Agreement, as it may be amended, restated or
otherwise modified, being the "Credit Agreement"). The Credit
Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed
in accordance with, the laws of the State of New York, United States,
without reference to principles of conflicts of laws other than New York
General Obligations Law section 5-1401.
THE GAP, INC.
By
Name:
Title:
July 6, 1999
Heidi Kunz
[Home Address]
Dear Heidi:
We are delighted to present this offer of employment at Gap Inc. We look
forward to you joining our team as soon as possible. Below please find a
summary of our offer.
1. Position: Your title will be Executive Vice President, Chief
Financial Officer, Gap Inc.
2. Reporting Relationship: You will report to John Wilson, Executive
Vice President, Chief Operating Officer, Gap Inc.
3. Salary: Your base salary will be $550,000 annually, payable every
two weeks. You will receive a performance review and a compensation
review in April 2000.
4. Bonus:
On your first scheduled pay date you will receive a cash bonus of
$250,000. This is processed as ordinary income and is subject to
taxes.
Under our Management Incentive Cash Award Program (MICAP) you will
be eligible to receive a bonus each year with the target award of
40% of your base salary. Actual payment will vary depending on
company and individual performance.
We will guarantee a bonus of $150,000 payable in April 2000. You
must be actively employed by Gap Inc. at that time. This guaranteed
bonus will be applied against your fiscal 1999 bonus.
5. Long Term Cash Bonus: You will be eligible to participate in our
Executive Long Term Cash Award Performance Plan (ELCAPP), subject to
pre-approval of the Board of Directors. ELCAPP provides for a
target cash incentive of 60%, and a maximum of 90% of your average
base salary over three years. Actual payment is dependent upon
company performance against pre-set goals over the three year cycle.
Assuming you are still actively employed by Gap Inc. at that time,
you will be eligible for the first payout under the Plan in April
2002. Any bonus provided at that time will be prorated to your
Anniversary Date (as defined herein). The cycles for the program
are overlapping. For example the 1st cycle you would be eligible
for begins on February 1, 1999 to January 31, 2002 with a payout in
the year 2002. Your payout will be based on achievement of Company
goals during that period.
6. Stock Options:
Subject to approval by the Compensation and Stock Option Committee
of the Board of Directors and the provisions of the Company's Stock
Option Plan, you will receive an option to purchase 210,000 shares
of stock of Gap Inc. on the date when the award is approved or on
the first day of employment, whichever is later ("Anniversary
Date"). The exercise price for the options shall be determined by
the market value of the stock on the Anniversary date. These shares
will become 100% vested and exercisable as shown in the schedule
below, provided you are employed by us. These options must be
exercised within ten years from the date of the award, or you will
lose your right to do so.
50,000 shares in 2001
60,000 shares in 2002
100,000 shares in 2003
7. Discounted Stock Options:
On your Anniversary date you will receive an option to purchase
100,000 shares of stock of Gap Inc. The exercise price for the
options will be 50% of the fair market value of the stock on the
Anniversary date. The options shall become 100% vested and
exercisable as shown in the schedule below provided you are then
employed by us. These options must be exercised within ten years
from the date of the award, or you will lose your right to do so.
20,000 shares in 2000
30,000 shares in 2001
50,000 shares in 2002
8. Proprietary Information or Trade Secrets of Others: You represent
and warrant to us that: 1) you do not have any other agreements,
relationships or commitments to any other person or entity that
conflicts with accepting this offer or performing your obligations
as outlined herein; and 2) you have returned all property and
confidential information belonging to all prior employers; and 3)
you will not disclose to us, or use, or persuade any other Company
employee to use, any proprietary information or trade secret of
another person or entity.
9. Termination/Severance Protection: In the unlikely event that you are
involuntarily terminated for any reason other than "cause" within
the first eighteen months of employment, we will offer the following
protection:
We will continue to pay you on a biweekly basis your current base
pay ("Severance Pay") for up to a maximum of eighteen months,
provided that you are actively seeking other employment. Severance
Pay will end at the earlier to occur of: 1) the date you begin new
employment, or 2) eighteen months after the date of termination. If,
despite your efforts to find alternative work, you are still
receiving Severance Pay at the time of Company's normal MICAP
payout, then we will pay you a MICAP at the target incentive amount,
("MICAP Potential") if the Company made it's target goals for the
year. In addition to the MICAP Potential all discounted stock
options granted to you as part of your offer letter shall become
immediately vested upon termination, if termination occurs within
the first 18 months of employment (as defined above). The vesting of
the other stock options granted to you upon hire will not be
accelerated, nor will they vest during the Severance Pay period.
With the exception of this Severance Pay, MICAP potential and
vesting of the discounted stock options, all other benefit programs
will cease at the time of your termination.
The term "cause" is hereby defined to include dishonesty, fraud or
deliberate injury to the Company, any activity that creates a
conflict of interest between you and the Company, any unlawful or
criminal activity of a serious nature, or any willful breach or
neglect of your duties.
10. Benefits:
A. Benefits Basics - Company paid Income Protection, Life and
Vision coverage will be effective the day you report to work.
You will have 31 days from your date of hire to elect
optional coverage such as Medical and Dental, Core Plus Income
Protection, Supplemental Life, etc. If optional coverage is
elected, it will take effect on your date of hire.
B. GapShare - You will become eligible to participate in our
401(k) Plan, called GapShare, after one year of service in
which you have worked at least 1,000 hours. When you join the
Plan , your contributions will be matched dollar for dollar
by the Company up to a maximum of 4% of your salary and all
Company matching contributions will be immediately vested.
You will receive more information when you become eligible.
If you were previously employed by Gap Inc. or any of its
subsidiaries, please contact the Benefits Department to
determine if you are entitled to special rehire benefits.
C. LifeStyle Benefits - Upon your date of hire, you may
participate in a variety of benefit services and programs
which are intended to help you balance your work and personal
life. Services include BabyLine, LifeWorks, babyGap Gift, and
the Dependent Care Account Plan.
D. Non-qualified Deferred Compensation Plan - You will become
eligible to participate in this program in January of 2000 if
you choose to participate. Specific information regarding the
program will be mailed to you.
E. Financial Planning Assistance - We will provide you with one
on one financial counseling through our partnership with the
Ayco Company.
Detailed information on all of the Benefit Programs will be
provided to you on your first day of employment. This package
will also contain important information on enrollment
deadlines.
11. Relocation: We will pay for your relocation expenses in
accordance with the company's relocation policy for homeowners.
Some relocation materials were previously provided. Additional
information will be forwarded to you by Michelle Goza in our
Relocation Department. She will coordinate your move and answer any
questions. Please feel free to contact her at 1.800.333.7899
extension 44357.
Additionally, we will provide a no-interest loan of up to $2,000,000
to help assist you in the purchase of a home. You must sell in the
old location and purchase within one year in the new location. The
loan will be secured by stock grants given to you and by a second
deed of trust (or mortgage) on your new home. The entire principal
must be paid no later than five years from the loan's inception.
During the loan period, if you elect to sell Gap stock that has been
provided through a company-sponsored program, 50% of the after-tax
proceeds must be used to pay any outstanding principal due. This
excludes stock you sell solely to pay taxes on stock vestings. The
loan can be paid off at any time with no penalties and must be paid
in full if you leave the Company before the due date.
You understand that this agreement does not constitute an employment
contract and that your employment is at-will. This means that you do not
have a contract of employment for any particular duration or limiting the
grounds for your termination in any way. You are free to resign at any
time. Similarly, Gap Inc. ("Company") is free to terminate your
employment at any time for any reason. You understand that while
personnel policies, programs and procedures may exist and be changed from
time to time, the only time your at-will status could be changed is if you
were to enter into an express written contract with the Company explicitly
promising you job security, containing the words "This is an express
contract of employment", and signed by an officer of the Company. The
above language contains our entire agreement about your at-will status and
there are no oral or side agreements of any kind.
Again, Heidi, we are delighted to offer you employment at Gap Inc. We
know you will contribute greatly to our organization and will find the
position to be a most challenging one.
Very truly yours,
__/s/ John Wilson________
John Wilson
Executive Vice President
Chief Operating Officer
Confirmed this 8th day of July, 1999
/s/ Heidi Kunz
Heidi Kunz
EXHIBIT 15
Deloitte & Touche LLP
50 Fremont Street Telephone: (415) 783-4000
San Francisco, California 94105-2230 Facsimile: (415) 783-4329
To the Board of Directors and Shareholders of
The Gap, Inc.:
We have made reviews, in accordance with standards
established by the American Institute of Certified Public
Accountants, of the unaudited interim condensed
consolidated financial statements of The Gap, Inc. and
subsidiaries for the periods ended July 31, 1999 and
August 1, 1998, as indicated in our report dated August
11, 1999; because we did not perform an audit, we
expressed no opinion on that information.
We are aware that our report referred to above, which is
included in your Quarterly Report on Form 10-Q for the
quarter ended July 31, 1999, is incorporated by reference
in Post Effective Amendment No. 1 to Registration
Statement No. 2-72586, Registration Statement No. 2-60029,
Registration Statement No. 33-39089, Registration
Statement No. 33-40505, Registration Statement No. 33-
54686, Registration Statement No. 33-54688, Registration
Statement No. 33-54690, Registration Statement No. 33-
56021, Registration Statement No. 333-00417, Registration
Statement No. 333-12337, Registration Statement No. 333-
36265, Registration Statement No. 333-68285, Registration
Statement No. 333-70991, Registration Statement No. 333-
72921 and Registration Statement No. 333-76523.
We also are aware that the aforementioned report, pursuant
to Rule 436(c) under the Securities Act of 1933, is not
considered a part of the Registration Statements prepared
or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections
7 and 11 of that Act.
/s/ Deloitte & Touche LLP
September 10, 1999
Deloitte Touche
Tohmatsu
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary information extracted from the Condensed
Consolidated Financial Statements and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-29-2000
<PERIOD-END> JUL-31-1999
<CASH> 420,954,000
<SECURITIES> 14,989,000
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 1,502,255,000
<CURRENT-ASSETS> 2,221,428,000
<PP&E> 3,543,396,000
<DEPRECIATION> 1,313,667,000
<TOTAL-ASSETS> 4,678,583,000
<CURRENT-LIABILITIES> 1,842,950,000
<BONDS> 542,279,000
0
0
<COMMON> 50,196,000
<OTHER-SE> 1,877,284,000
<TOTAL-LIABILITY-AND-EQUITY> 4,678,583,000
<SALES> 4,731,073,000
<TOTAL-REVENUES> 4,731,073,000
<CGS> 2,777,700,000
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<INCOME-TAX> 238,919,000
<INCOME-CONTINUING> 398,199,000
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<NET-INCOME> 398,199,000
<EPS-BASIC> 0.47
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