FIFTH AMENDMENT AGREEMENT
Fifth Amendment Agreement, dated as of February 15, 1995 (this "Fifth
Amendment Agreement"), among The Gap, Inc., a Delaware corporation (the
"Borrower"), the LC Subsidiaries (as defined in the Credit Agreement
referred to below) signatory hereto, the lenders (the "Lenders") listed
on the signature pages hereof and Citibank, N.A., ("Citibank"), as issuing
bank (the "Issuing Bank") and, after giving effect to Section 8 hereof,
Citicorp USA Inc. ("CUSA"), as agent (the "Agent") for the Issuing Bank and
the Lenders.
PRELIMINARY STATEMENTS:
1. The Borrower, the LC Subsidiaries, the Lenders, the Issuing Bank
and Citibank,as agent have entered into a Credit Agreement, dated as of March 2,
1990, as amended by the First Amendment Agreement, dated as of March 1, 1991
(the "First Amendment Agreement"), as amended by the Second Amendment
Agreement, dated as of September 16, 1992 (the "Second Amendment Agreement"),
as amended by the Third Amendment Agreement, dated as of January 22, 1993
(the "Third Amendment Agreement"), and as amended by the Fourth Amendment
Agreement, dated as of February 4, 1994 (the "Fourth Amendment Agreement")
(such credit agreement, as so amended and as it may be further amended and in
effect from time to time, being referred to herein as the "Credit Agreement";
terms defined therein and not otherwise defined herein being used herein as
therein defined).
2. Pursuant to Section 2.14 of the Credit Agreement, the Borrower has
requested that the A Lenders and the Agent extend the Revolver Termination
Date to March 2, 1998. The Borrower has also requested that the Letter of
Credit facility provided for in Article III of the Credit Agreement be
converted into a 364-day facility with an annual renewal option. In
addition, the Borrower has requested an increase in the LC Commitments and
the reduction of certain fees.
3. The Borrower, the LC Subsidiaries, the Lenders, the Issuing Bank
and the Agent wish to amend the Credit Agreement, among other things, to
(i) memorialize the extension of the Revolver Termination Date to March 2,
1998, (ii) convert the Letter of Credit facility provided for in Article III
of the Credit Agreement into a 364-day facility with an annual renewal
option, (iii) increase the aggregate amount of LC Commitments from
$350,000,000 to $425,000,000 and (iv) decrease the facility fee payable
under Section 3.01 with respect to the LC Commitments.
NOW, THEREFORE, in consideration of the premises set forth above and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. The Credit Agreement is,
effective as of March 2, 1995 and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) The second sentence of the Preliminary Statement of the
Credit Agreement is hereby amended by deleting the dollar amount
"$350,000,000" appearing therein and inserting in its place the
dollar amount "$425,000,000".
(b) The definition of "LC Commitment" appearing in Section 1.01 of
the Credit Agreement is hereby amended in full to read as follows:
""LC Commitment" means, as to any LC Lender, the amount set forth
opposite such LC Lender's name on the signature pages of the
Fifth Amendment Agreement, dated as of February 15, 1995, among
the Borrower, the LC Subsidiaries, the Lenders parties thereto,
the Issuing Bank and the Agent with respect to the caption "LC
Commitment", or, if such LC Lender has entered into one or more
Assignment and Acceptances, the amount set forth for such LC
Lender with respect thereto in the Register maintained by the
Agent pursuant to Section 10.07 hereof."
(c) The definition of "LC Commitment Percentage" appearing in Section
1.01 of the Credit Agreement is hereby amended in full to read as
follows:
""LC Commitment Percentage" means, with respect to each LC
Lender, the percentage of which the then existing LC Commitment
of such LC Lender is of the LC Commitments of all LC Lenders;
provided, however; that with respect to Letters of Credit
which expire after the LC Termination Date has occurred, the
LC Commitment Percentage of each LC Lender shall be the
percentage of which such LC Lender's LC Commitment immediately
prior to the LC Termination Date is of the LC Commitment of
all LC Lenders immediately prior to the LC Termination Date."
(d) The definition of "LC Termination Date" appearing in Section
1.01 of the Credit Agreement is hereby amended in full to read
as follows:
""LC Termination Date" means, subject to Section 3.11 hereof,
March 1, 1996, or the earlier date of termination in whole of
the LC Commitments pursuant to Section 3.09 or Section 8.01."
(e) The definition of "Revolver Termination Date" appearing in Section
1.01 of the Credit Agreement is hereby amended by deleting the
reference to "March 2, 1997 and replacing it with March 2, 1998".
(f) Section 2.14 of the Credit Agreement is hereby amended to read in
full as follows:
"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, all A 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 such 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 shall fail
to deliver such notice to the Borrower and the Agent as provided
above, such A Lender shall be deemed not to have consented to any
requested extension and all of the A Lenders' A Commitments shall
terminate on the scheduled Revolver Termination Date. 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."
(g) Section 3.01 of the Credit Agreement is hereby amended as follows:
(i) by deleting the phrase "30 days" appearing therein and
inserting in its place the phrase "one day";
(ii) by deleting the dollar amount "$350,000,000" appearing
therein and inserting in its place the dollar amount
"$425,000,000";
(iii) by deleting the phrase "the earlier of (i)" appearing
therein; and
(iv) by deleting the phrase "or (ii) the LC Termination
Date" appearing therein.
(h) Subsection (a) of Section 3.05 of the Credit Agreement is hereby
amended to read in full as follows:
"(a) Facility Fee. The Borrower hereby agrees to pay to each LC
Lender (in accordance with its LC Commitment Percentage) a letter
of credit facility fee equal to 0.10% per annum for all periods
prior to March 2, 1995 and 0.08% per annum for all periods on
and after March 2, 1995 on the total amount of LC Commitments
(regardless of the actual or deemed usage thereof) payable
quarterly in arrears on the last day of April, July, October
and January and on the LC Termination Date."
(i) Section 3.11 of the Credit Agreement is hereby amended to read in
full as follows:
"SECTION 3.11. Extension of LC Termination Date. At least
45 but not more than 60 days prior to the LC Termination Date,
the Borrower, by written notice to the Agent, may request that
the LC Termination Date be extended for a period of 364 days
from its then current scheduled expiration. The Agent shall
promptly notify the Issuing Bank and each LC Lender of such
request, and the Issuing Bank and each LC Lender shall in
turn, within 30 days prior to such LC Termination Date, notify
the Borrower and the Agent in writing regarding whether the
Issuing Bank, or such LC Lender (as the case may be) will
consent to such extension. If, and only if, all LC Lenders
and the Issuing Bank consent in writing to such extension
prior to the tenth Business Day preceding such LC Termination
Date, the LC Termination Date shall be so extended for such
364-day period and references herein to the "LC Termination
Date" shall refer to such "LC Termination Date" as so
extended. If the Issuing Bank or any LC Lender shall fail to
deliver such notice to the Borrower and the Agent as provided
above, the Issuing Bank or such Lender shall be deemed not to
have consented to such requested extension and the Issuing
Bank's and all LC Lenders' LC Commitments shall terminate on
the scheduled LC Termination Date. It is understood that
neither the Issuing Bank nor any LC Lender shall have any
obligation whatsoever to agree to any request made by the
Borrower for an extension of the LC Termination Date."
SECTION 2. Conditions of Effectiveness. This Fifth Amendment Agreement shall
become effective as of March 2, 1995 if, on or prior to that date, the Agent
shall have received counterparts of this Fifth Amendment Agreement duly
executed by the Borrower, the LC Subsidiaries, the Lenders, the Issuing Bank
and the Agent, together with such other documents or information as the Agent
may reasonably request.
SECTION 3. Reference to and Effect on the Credit Agreement. (a) Upon the
effectiveness of this Fifth Amendment Agreement, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended above, the Credit Agreement is and
shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
(c) The execution, delivery and effectiveness of this Fifth Amendment
Agreement shall not operate as a waiver of any right, power or
remedy of any Lender, the Issuing Bank or the Agent under the
Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement.
SECTION 4. Fees, Costs and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Agent and the Issuing Bank incurred in connection with
the preparation, execution, delivery, administration, modification and amendment
of this Fifth Amendment Agreement and the other documents to be delivered
hereunder, including, without limitation, the fees and out-of-pocket expenses
of the Agent's legal counsel. The Borrower further agrees to pay on demand
all costs and expenses of the Agent, the Issuing Bank and the Lenders
(including, without limitation, reasonable fees and expenses of the Agent's
legal counsel) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Fifth Amendment Agreement
and other documents to be delivered under this Fifth Amendment Agreement.
SECTION 5. Execution in Counterparts. This Fifth Amendment Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
SECTION 6. GOVERNING LAW. THIS FIFTH AMENDMENT AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. LC Subsidiaries. From and after the date hereof, Gap (Canada), Inc.
shall be an LC Subsidiary hereunder and under the Credit Agreement. Each LC
Subsidiary hereby (i) consents in all respects to the transactions
contemplated hereby, (ii) acknowledges and irrevocably agrees that none of
its respective obligations under the Credit Agreement or with respect to the
Letters of Credit for which it is the account party shall be affected hereby,
(iii) acknowledges and irrevocably agrees that all of its respective
obligations under the Credit Agreement, as amended hereby, and with respect
to the Letters of Credit for which it is the account party are in full force
and effect, (iv) ratifies and reaffirms in all respects the Credit Agreement,
as amended hereby, and the Letters of Credit for which it is the account party
and all of its respective obligations with respect thereto, (v) certifies that
it has received a copy hereof, has reviewed the same and is fully apprised of
the contents and substance hereof and (vi) confirms that it shall be bound by
the terms hereof.
SECTION 8. Citicorp USA Inc. Notwithstanding anything contained in the Credit
Agreement to the contrary, from and after the date hereof Citicorp USA Inc.
("CUSA") shall be Lender and the Agent hereunder and under the Credit
Agreement. The Credit Agreement is, effective the date hereof, hereby
amended as follows:
(a) The introductory paragraph is hereby amended in full to read as
follows:
"CREDIT AGREEMENT, dated as of March 2, 1990 (this "Agreement"),
among The Gap, Inc., a Delaware corporation (the "Borrower"),
the LC Subsidiaries (as hereinafter defined), the banks (the
"Banks") listed on the signature pages hereof, Citibank, N.A.,
("Citibank"), as issuing bank (the "Issuing Bank"), and Citicorp
USA Inc. ("CUSA") as agent (the "Agent") for the Lenders and
Issuing Bank hereunder:"
(b) Each reference in the Credit Agreement to "Citibank" shall be
amended to refer to "CUSA" except as follows:
(i) The reference to "Citibank" in the definition of "Base Rate"
shall continue to refer to Citibank;
(ii) The reference to "Citibank" in the definition of "Issuing Bank"
shall continue to refer to Citibank; and
(iii) The reference to "Citibank" in the definition of "Reference
Bank" shall continue to refer to Citibank.
(c) Section 9.03 of the Credit Agreement is hereby amended to read in
full as follows:
"SECTION 9.03. CUSA, Citibank and Affiliates. With respect
to CUSA's A Commitment, its LC Commitment and the Advances
made by it, and with respect to Citibank as Issuing Bank, CUSA
and Citibank shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as
though it were not the Agent or Issuing Bank, as the case may
be; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include CUSA and Citibank in
their individual capacities. CUSA, Citibank and each of
their respective Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if
CUSA were not the Agent or Citibank were not the Issuing
Bank, as the case may be, and without any duty to account
therefor to the Lenders."
(d) Section 10.04 of the Credit Agreement is hereby amended
by adding the following subsection (d):
"(d) The Borrower hereby acknowledges that the funding
method by each Lender of its Advances hereunder shall
be in the sole discretion of such Lender. The Borrower
agrees that for purposes of any determination to be
made under Sections 2.08, 2.12(a), 2.13 or 10.04(b)
of this Agreement each Lender shall be deemed to have
funded its Eurodollar rate Advances with proceeds of
Dollar deposits in the London interbank market."
(e) Each reference in Section 10.05 of the Credit Agreement to a
Lender shall be amended to refer to such Lender and its Affiliates.
(f) Section 10.07 of the Credit Agreement is hereby amended by
adding the following subsection (h):
"(h) Notwithstanding anything herein contained to the
contrary, each Lender may assign any of its rights and
obligations under this Agreement to any of its Affiliates
without notice to or consent of the Borrower or the Agent;
and each Lender or any of its Affiliates may assign any
of its rights (including, without limitation, rights to
payment of principal and/or interest hereunder) under this
Agreement to any Federal Reserve Bank without notice to or
consent of the Borrower or the Agent."
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWER:
THE GAP, INC.
By /s/ Richard S. McKinley
Name: Richard S. McKinley
Title: Vice President-Finance and
Treasurer
LC SUBSIDIARIES:
BANANA REPUBLIC, INC.
By /s/ Richard S. McKinley
Name: Richard S. McKinley
Title: Vice President-Finance and
Treasurer
GPS (GREAT BRITAIN) LIMITED
By /s/ Richard S. McKinley
Name: Richard S. McKinley
Title: Vice President-Finance and
Treasurer
GAP (CANADA), INC.
By /s/ Richard S. McKinley
Name: Richard S. McKinley
Title: Vice President-Finance and
Treasurer
GAP (FAR EAST) LIMITED
By /s/ Richard S. McKinley
Name: Richard S. McKinley
Title: Vice President-Finance and
Treasurer
THE GAP (SINGAPORE) PTE. LIMITED
By /s/ Richard S. McKinley
Name: Richard S. McKinley
Title: Vice President-Finance and
Treasurer
THE AGENT:
CITICORP USA INC.
By /s/ Barbara A. Cohen
Name: Barbara A. Cohen
Title: Vice President
THE ISSUING BANK:
CITIBANK, N.A.
By /s/ Edward Leitieri
Name: Edward Leitieri
Title: Vice President
THE LENDERS:
A Commitment
$ 50,000,000 CITICORP USA INC.
LC Commitment
$ 100,000,000
By /s/ Barbara A. Cohen
Name: Barbara A. Cohen
Title: Vice President
A Commitment BANK OF AMERICA NATIONAL
$ 35,000,000 TRUST & SAVINGS ASSOCIATION
LC Commitment
$ 85,000,000
By /s/ Richard E. Bryson
Name: Richard E. Bryson
Title: Vice President
A Commitment NATIONAL WESTMINSTER
$ 20,000,000 BANK PLC
LC Commitment New York Branch
$ 65,000,000
By /s/ Hal S. Sadoff
Name: Hal S. Sadoff
Title: Vice President
Nassau Branch
By /s/ Hal S. Sadoff
Name: Hal S. Sadoff
Title: Vice President
A Commitment NATIONSBANK
$ 30,000,000 OF TEXAS, N.A.
LC Commitment
$ 35,000,000
By /s/ Overton Colton
Name: Overton Colton
Title: Vice President
A Commitment ROYAL BANK OF CANADA
$ 20,000,000
LC Commitment
$ 25,000,000 By /s/ Brian W. Dixon
Name: Brian W. Dixon
Title: Senior Manager
A Commitment BANK OF MONTREAL
$ 10,000,000
LC Commitment
$ 35,000,000 By /s/ Cecily Mistarz
Name: Cecily Mistarz
Title: Senior Manager, Credit
A Commitment SOCIETE GENERALE
$ 20,000,000
LC Commitment
$ 25,000,000 By /s/ J. Blaine Shaum
Name: J. Blaine Shaum
Title: Regional Manager
A Commitment THE FUJI BANK, LIMITED
$ 15,000,000
LC Commitment
$ 20,000,000 By /s/ Shigeo Matsumoto
Name: Shigeo Matsumoto
Title: General Manager
A Commitment U.S. NATIONAL BANK OF OREGON
$ 15,000,000
LC Commitment
$ 15,000,000 By /s/ Janet E. Jordan
Name: Janet E. Jordan
Title: Vice President
A Commitment MORGAN GUARANTY TRUST
$ 20,000,000 COMPANY OF NEW YORK
LC Commitment
$ 10,000,000
By /s/ Carl J. Mehldau, Jr.
Name: Carl J. Mehldau, Jr.
Title: Associate
A Commitment THE SUMITOMO BANK LIMITED
$ 15,000,000
LC Commitment
$ 10,000,000 By /s/ Hiroshi Amano
Name: Hiroshi Amano
Title: General Manager
$ 250,000,000 Total of the A Commitments
$ 425,000,000 Total of the LC Commitments