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| Thursday, Aug. 28, 2008 |
U.S. $150,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 27, 2000
among
THE GAP, INC.,
as Borrower,
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THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN
as Banks,
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and
CITICORP USA, INC.
as Agent
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for the Banks and the
other Lenders from time to time party hereto
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 27, 2000 (this
"Agreement"), among The Gap, Inc., a Delaware corporation (the "Borrower"), the
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banks and financial institutions (the "Banks") listed on the signature pages
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hereof and Citicorp USA, Inc. ("CUSA"), as agent (the "Agent") for the Lenders
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(as hereinafter defined) hereunder:
PRELIMINARY STATEMENTS:
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(1) The Borrower, certain of its subsidiaries, certain banks and financial
institutions and the Agent entered into a Credit Agreement dated as of July 1,
1997 (as amended by the First Letter Amendment dated as of June 30, 1998, the
"Original Agreement")
(2) The Borrower, the Banks, the Lenders and the Agent desire to amend and
restate the Original Agreement as set forth below.
NOW THEREFORE, the Borrower, the Banks, the Lenders from time to time party
hereto and the Agent agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms.
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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
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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
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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
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opposite such A Lender's name on Schedule I hereof under the caption' A
-
Commitment' or, if such A Lender has entered into one or more Assignment
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and Acceptances, the amount set forth for such A Lender with respect
thereto in the Register maintained by the Agent pursuant to Section 9.07
hereof, in each case as such amount may be reduced pursuant to Section
2.05.
"A Lender" means any Lender having an A Commitment or to which A
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Advances are owed.
"Advance" means an A Advance or a B Advance, and "Advances" means the
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A Advances and the B Advances.
"Affiliate" means, as to any Person, any other Person that, directly
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or indirectly, controls, is controlled by, or is under common control with,
such Person.
"Anniversary Date" means June 30 in each calendar year occurring
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during the term of this Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
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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
<PAGE>
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
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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
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a B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
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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.
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"Base Rate" means, for any period, a fluctuating interest rate per
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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, N.A.
("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
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provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing.
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"Business Day" means a day of the year on which banks are not required
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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
if the applicable Business Day relates to any Eurodollar Rate Advances, a
day on which dealings are carried on in the London interbank market.
"Capital Lease" of any Person means any lease of any property (whether
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real, personal or mixed) by such Person as lessee, which lease should, in
accordance with generally accepted
<PAGE>
accounting principles, be required to be accounted for as a capital lease
on the balance sheet of such Person.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
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and Liability Act of 1980, as amended (42 U.S.C. (S) 9601 et seq.), and any
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regulations promulgated thereunder.
"Change of Control" means the occurrence, after the date of this
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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), 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)
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and (iii) of this definition of Change of Control shall not include any
Person listed on Schedule IV hereto or any group of Persons in which one or
more of the Persons listed on Schedule IV are members.
"Consolidated" and any derivative thereof each means, with reference
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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 5.01(e).
"Convert", "Conversion" and "Converted" each refers to a conversion of
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A Advances of one Type into A Advances of another Type pursuant to Section
2.09 or 2.10.
"CP Rating" means, as of any date, the higher of the ratings that have
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been most recently announced by either S&P or Moody's, as the case may be,
for any class of non-credit enhanced commercial paper debt issued by the
Borrower. For purposes of the foregoing, (a) if only one of S&P and
Moody's shall have in effect a CP Rating, the Eurodollar Rate Margin and
the Facility Fee Percentage may be determined by reference to the available
rating; (b) if any rating established by S&P or Moody's shall be changed,
such change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (c) if S&P
or Moody's shall change the basis on which ratings are established, each
reference to the CP Rating announced by S&P or Moody's, as the case may be,
shall refer to the then equivalent rating by S&P or Moody's, as the case
may be.
"Debt" of any Person means, without duplication, (i) all indebtedness
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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
<PAGE>
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.
"Debt Rating" means, as of any date, the higher of the ratings that
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have been most recently announced by either S&P or Moody's, as the case may
be, for any class of long-term senior unsecured non-credit enhanced debt
issued by the Borrower. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Debt Rating, the Eurodollar Rate
Margin and the Facility Fee Percentage may be determined by reference to
the available rating; (b) if any rating established by S&P or Moody's shall
be changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such change;
and (c) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Default" means an event which would constitute an Event of Default
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but for the requirement that notice be given or time elapse, or both.
"Dollars", "dollars" and the sign "$" each means lawful money of the
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United States.
"Domestic Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II 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
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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
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laws of the United States, or any State thereof, and having Total Assets in
excess of $10,000,000,000; (ii) a
<PAGE>
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
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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 Bank or Lender
or Affiliate of a Bank or 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,
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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
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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
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amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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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
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office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule II 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
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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
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of Section 2.09.
"Eurodollar Rate Advance" means an A Advance which bears interest as
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provided in Section 2.07(b).
<PAGE>
"Eurodollar Rate Margin" means, as of any date, a percentage per annum
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determined by reference to the highest of the Debt Rating or the CP Rating,
as the case may be, in effect on such date as set forth below:
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Debt Rating or CP Eurodollar Rate Margin
Rating for Eurodollar Rate
S&P/Moody's Advances
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Level 1
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Debt Rating:
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A+ or above or A1 or above .13%
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Level 2
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Debt Rating:
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below A+ but at least
A- or below A1 but at
least A3
or
CP Rating:
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A1 or P1 .155%
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Level 3
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Debt Rating:
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below A- but at least
BBB- or below A3
but at least Baa3
or
CP Rating:
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below A1 or below
P1 .21%
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Level 4
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Debt Rating:
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none for S&P or
Moody's or
below BBB- or
below Baa3
and
CP Rating:
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None from S&P or
Moody's .31%
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<PAGE>
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
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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 7.01.
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"Facility Fee Percentage" means, as of any date, a percentage per
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annum determined by reference to the highest of the Debt Rating or the CP
Rating, as the case may be, as set forth below:
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Debt Rating or CP
Rating Facility Fee
S&P/Moody's
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Level 1
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Debt Rating:
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A+ or above or A1 or above .06%
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Level 2
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Debt Rating:
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below A+ but at least
A- or below A1 but
at least A3
or
CP Rating:
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A1 or P1 .07%
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Level 3
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Debt Rating:
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below A- but at least
BBB- or below A3
but at least Baa3
or
CP Rating:
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below A1 or below
P1 .115%
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<PAGE>
----------------------------------------
Level 4
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Debt Rating:
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none for S&P or
Moody's or
below BBB- or
below Baa3
and
CP Rating:
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None from S&P or
Moody's .19%
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"Federal Funds Rate" means, for any period, a fluctuating interest
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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
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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 5.01(e).
"Fiscal Year" means a fiscal year of the Borrower and its
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Subsidiaries.
"Hazardous Substance" means (i) any hazardous substance or toxic
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substance as such terms are presently defined or used in (S) 101(14) of
CERCLA (42 U.S.C. (S) 9601(14)), in 33 U.S.C. (S) 1251 et.seq. (Clean Water
-- ---
Act), or 15 U.S.C. (S) 2601 et.seq. (Toxic Substances Control Act) and (ii)
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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
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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
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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
<PAGE>
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:
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(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
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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 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 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.
"Lenders" means the Banks listed on the signature pages hereof and
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each Eligible Assignee that shall become a party hereto pursuant to Section
9.07.
"Lien" means any assignment, chattel mortgage, pledge or other
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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 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.
"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.
<PAGE>
"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
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(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
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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).
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"Notice of B Borrowing" has the meaning specified in Section 2.03(a).
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"Obligations" means all obligations of the Borrower now or hereafter
-----------
existing under this Agreement, whether for principal, interest, fees,
expenses, indemnification or otherwise.
"OECD" means the Organization for Economic Cooperation and
----
Development.
"Permitted Lien" means:
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(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;
<PAGE>
(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 III hereof;
(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 (i v), (v), (vii) and (viii) for the same or lesser
amount; provided, that, no such extension, renewal or replacement
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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
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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. (S) 6901 et seq.), and any regulations promulgated
-- ---
thereunder.
"Reference Banks" means Citibank, N.A., The Hongkong and Shanghai
---------------
Banking Corporation Limited and Bank of America, N.A.
"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 9.07(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, 2005 or the earlier date of termination in whole of the A
Commitments pursuant to Section 2.05 or 7.01.
<PAGE>
"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) 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) (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.
"364-Day Credit Agreement" means the Second Amended and Restated
------------------------
Credit Agreement dated as of the date hereof among the Borrower, the LC
Subsidiaries (as defined therein), the financial institutions party thereto
as lenders, Citibank, N.A., as Issuing Bank (as defined therein), and CUSA,
as agent for the Issuing Bank and such lenders, as the same may be amended,
supplemented or otherwise modified from time to time.
"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.
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 5.01(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
<PAGE>
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, telex or cable.
Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by
telecopier, telex, cable 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 9.02, 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 IV, 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 IV, 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 prior to the
date of any A Borrowing 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 (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing and (ii) 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.
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, telex or cable, confirmed
<PAGE>
immediately in writing, 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:
<PAGE>
(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 such 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 9.02 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 IV, 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
<PAGE>
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 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 3.04; 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 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.
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 per annum equal to the
Facility Fee Percentage in effect 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
<PAGE>
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 and the Agent.
SECTION 2.05 Reduction of the A Commitments. 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, 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.
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 the 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.
<PAGE>
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 any 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 Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority 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 A 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
<PAGE>
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
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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 Day's, in the case of
Eurodollar Rate Advances and (ii) same Business Day's, 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
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(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 9.04(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,
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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
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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
<PAGE>
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
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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
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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 45 but not more
--------------------------------------
than 60 days prior to the next Anniversary Date, the Borrower, by written notice
to the Agent, may request that the Revolver Termination Date be extended one
calendar year 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 30 days prior to such next Anniversary Date, notify the Borrower and the
Agent in writing regarding whether such A Lender will consent to such extension.
If, and only if, the Majority Lenders consent in writing to such extension prior
to the tenth Business Day preceding such next Anniversary Date, the Revolver
Termination Date shall be so extended for one calendar year and references
herein to the "Revolver Termination Date" shall refer to such "Revolver
Termination Date" as so extended. If any A Lender does not consent to any
requested extension or any A Lender shall fail to deliver such notice to the
Borrower and the Agent as provided above, in which event such A Lender shall be
deemed not to have consented, (each such A Lender being a "Declining A Lender"),
such Declining A Lenders' A Commitments shall terminate on the scheduled
Revolver Termination Date then in effect for such Declining A Lender, 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 3.02, or any amounts
which may
<PAGE>
be required to be paid by the Borrower pursuant to Section 9.04(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
PAYMENTS, TAXES, EXTENSIONS, ETC.
SECTION 3.01 Payments and Computations. (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 B Advances) at its address referred to in Section 9.02 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 commitment
fees ratably (other than amounts payable pursuant to Section 2.03, 2.08, 2.12,
2.14 or 3.02) 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 9.07(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 hereby authorizes 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 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
commitment 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 commitment fee, as the case
may be; provided, however, if such extension would cause payment of interest on
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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 3.02 Taxes. (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
<PAGE>
withholdings, and all liabilities with respect thereto, excluding, in the case
---------
of each A Lender 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 or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each A Lender, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such A Lender's 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 3.02) 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
(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 3.02) 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 Bank 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 3.02(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 3.02(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
<PAGE>
indemnification under Section 3.02(a) with respect to Taxes imposed by the
United States; provided, however, that should an A Lender become subject to
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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 3.02(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 3.02 as the assignor provided, that, the rate of
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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 3.02 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 3.02 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
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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 3.02 and (ii) otherwise to cooperate with the
Borrower to minimize the amount payable by the Borrower pursuant to this Section
3.02; provided, however, that no A Lender shall be obliged to disclose to the
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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 3.02 shall survive the payment in full of the Obligations.
SECTION 3.03 Sharing of Payments, Etc. 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 2.08, 2.12, 2.14 or 3.02) in excess of its ratable share of
payments on account of the A Advances obtained by all the A Lenders, such Lender
shall forthwith purchase from the other 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
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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
3.03 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.
<PAGE>
SECTION 3.04 Evidence of Debt. (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 9.07(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
Borrowing made hereunder, the Type of Advances comprising such 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.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01 Condition Precedent to Effectiveness of this Agreement. This
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Agreement shall be effective as of June 27, 2000 if on or before June 29, 2000
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 authorized to sign this Agreement and the other documents to
be delivered hereunder.
(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 4.02 Conditions Precedent to Each A Borrowing. The obligation of each
----------------------------------------
A Lender to make an A Advance on the occasion of each A Borrowing (including the
initial A Borrowing) shall be subject to the further conditions precedent that
on the date of such A Borrowing 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 shall constitute a representation
and warranty by the Borrower that on the date of such A Borrowing such
statements are true):
(a) The representations and warranties contained in Section 5.01
(other than Section 5.01(e)) are correct on and as of the date of such A
Borrowing, before and after giving effect to such A Borrowing, 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, which constitutes an Event of
<PAGE>
Default or Default and (ii) no event has occurred and is continuing which
constitutes an "Event of Default" or a "Default" under the 364-Day Credit
Agreement.
SECTION 4.03 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 5.01
(other than Section 5.01(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 a
"Default" under the 364-Day 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 V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 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. 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 of
this Agreement are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any contractual restriction
binding on or affecting the Borrower or its 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 of
this Agreement.
(d) This Agreement is the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its terms,
except as limited by bankruptcy,
<PAGE>
insolvency or other laws of general application relating to or effecting
the enforcement of creditors' rights generally and general principles of
equity (regardless of whether considered in a proceeding in equity or at
law).
(e) The Consolidated balance sheets of the Borrower and its
Subsidiaries as at January 29, 2000, 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, 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, and since
January 29, 2000, 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 VI 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 VI
COVENANTS OF THE BORROWER
SECTION 6.01 Affirmative Covenants. The Borrower will, unless the Majority
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Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
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Subsidiaries to comply, in all material respects with all applicable laws
(including, without limitation, all Environmental Liens), 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.
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(b) Preservation of Corporate Existence, Etc. Preserve and
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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 hereunder or the ability of the Borrower to
perform its obligations hereunder.
(c) Visitation Rights. Permit the Agent and any Lender or any
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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
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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
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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
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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
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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,
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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.
<PAGE>
(h) Environmental Matters. If the Borrower or any of its
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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
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Majority Lenders made through the Agent, cause its 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
Lenders.
SECTION 6.02 Negative Covenants. The Borrower will not, without the written
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consent of the Majority Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
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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 6.03 hereof.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
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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
6.02(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
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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
<PAGE>
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 th