Exhibit 10.15
AMENDMENT NO. 2
to that certain
REVOLVING CREDIT AGREEMENT
dated as of June 21, 2002
AMENDMENT NO. 2 (this "AMENDMENT"), dated as of December 22, 2003, to the
Revolving Credit Agreement, dated as of June 21, 2002 (as amended and in effect
from time to time, the "CREDIT AGREEMENT"), by and among (a) STAPLES, INC. (the
"BORROWER"), a Delaware corporation having its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (b) FLEET NATIONAL BANK and the other
lending institutions listed on SCHEDULE 1 attached thereto (the "LENDERS"), (c)
FLEET NATIONAL BANK, as administrative agent (in such capacity, the "AGENT") for
the Lenders, (d) CITICORP USA, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION, as
co-syndication agents for the Lenders, and (e) HSBC BANK USA and JPMORGAN CHASE
BANK, as co-documentation agents for the Lenders.
WHEREAS, the Borrower, the Lenders and the Agent have agreed, on the
terms and conditions set forth herein, to amend certain provisions of the Credit
Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Section 1 of the Credit Agreement is hereby amended as follows:
(i) by deleting clause (a) of the definition of "Consolidated EBIT"
and inserting the following in lieu thereof:
"(a) all extraordinary and nonrecurring items of (i) income or
(ii) losses in an aggregate amount not to exceed $100,000,000 on
a cumulative basis from December 22, 2003, as determined in
accordance with GAAP"; and
(ii) by deleting the date "June 21, 2005" in the definition of
"Maturity Date" and inserting the date "June 21, 2006" in lieu
thereof.
(iii) by inserting the following new definition in the appropriate
alphabetical order:
"EXTENSION EFFECTIVE DATE. The date on which the Agent has
received the consent of the Lenders required to approve the
extension of the Maturity Date pursuant to Section 2.12 and such
extension has become effective."
(b) Section 2 of the Credit Agreement is hereby amended by deleting
Section 2.12 in its entirety and inserting the following new Section 2.12 in
lieu thereof:
"SECTION 2.12. REQUEST FOR EXTENSION OF MATURITY DATE.
The Borrower may, on one occasion, provided that no Default or Event
of Default has occurred and is continuing, by written notice to the Agent
given on or before October 21, 2004, request that the initial Maturity Date
be extended to a specified date not later than June 21, 2007. The Agent
shall notify the Lenders of such request promptly after receipt, and
request each Lender to notify the Agent of its determination to consent or
not to consent to such extension. Each Lender which makes a determination
not to consent to the extension of the initial Maturity Date on or before
November 21, 2004 shall notify the Agent of such determination by November
21, 2004. A Lender's failure to respond within the foregoing time period
shall not be deemed to be a consent by such Lender to the extension of the
Maturity Date. The Borrower may take the actions permitted by Section 4.12
to replace any Lender that fails to agree to such extension. If Lenders
with aggregate Commitment Amounts of no less than $500,000,000 and no more
than $700,000,000 (including the Replacement Lenders and any new Lenders,
if applicable) consent to the extension by so notifying the Agent in
writing on or before January 31, 2005, the Maturity Date shall be extended,
effective as of the Extension Effective Date, to the date requested by the
Borrower in its notice but in any event not later than June 21, 2007, and
the definition of Maturity Date shall be deemed to reflect such extension
for all purposes hereof; PROVIDED that as of the Extension Effective Date,
(a) any Lender who does not consent to such extension shall have its
Revolving Credit Loan and all other amounts due hereunder and under the
other Loan Documents repaid and its Commitment terminated, (b) the Total
Commitment shall be reduced by the corresponding amount of the aggregate
Commitment Amounts of any Lenders who do not consent to the extension, (c)
the Total Commitment shall be increased by the corresponding amount of
additional funding committed to by existing Lenders and/or new Lenders
acceptable to the Agent; PROVIDED that the Total Commitment shall not
exceed $700,000,000, (d) if the Total Commitment is reduced or increased,
the Commitment Percentages of the Lenders who consent to the extension
shall be correspondingly adjusted, (e) if the Total Commitment is reduced
or increased, SCHEDULE 1 shall be automatically amended to reflect the
reduced or increased Total Commitment, as applicable, and the corresponding
changes to each consenting Lender's Commitment Percentage, (f) each new
Lender shall make all (if any) such payments to the other Lenders as may be
necessary to result in the Loans made by such new Lender being equal to
such new Lender's Commitment Percentage of all Loans outstanding to the
Borrower as of such date, (g) each new Lender shall have executed and
delivered to the Agent an instrument of accession in form and substance
satisfactory to the Agent, and (h) Notes shall be issued or amended and
such other changes shall be made to the Loan Documents, as shall be
necessary to reflect any such increase or decrease in the Total
Commitment."
(c) Section 25.1 of the Credit Agreement is hereby amended by inserting
the following sentence at the end of Section 25.1:
"Notwithstanding anything herein to the contrary, the Borrower, each Lender
and the Agent (and each employee, representative, or other agent of each of
the foregoing parties) may disclose to any and all Persons without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of
the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to any of the
foregoing parties relating to such U.S. tax treatment and U.S. tax
structure."
(d) SCHEDULE 1 to the Credit Agreement is hereby deleted in its entirety
and replaced with SCHEDULE 1 attached hereto.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the satisfaction of the following conditions precedent, all of
the following to be in form and substance satisfactory to the Agent:
(a) DELIVERY OF AMENDMENT. This Amendment shall have been duly executed
and delivered by each of the Borrower, the Guarantors, the Lenders and the
Agent, shall be in full force and effect and shall be in form and substance
satisfactory to the Lenders. The Agent shall have received a fully executed copy
of this Amendment.
(b) ASSIGNMENT AND ACCEPTANCE AGREEMENTS. National City Bank ("NATIONAL
CITY") shall have assigned its Loans and Commitment to KeyBank National
Association ("KEYBANK"), Bank One NA ("BANK ONE") and U.S. Bank National
Association ("U.S. BANK"). In connection therewith, the Agent shall have
received (a) an Assignment and Acceptance between National City and KeyBank
pursuant to which National City assigns to KeyBank a portion of its Commitment
in the amount of $10,000,000 and related Loans and Obligations, (b) an
Assignment and Acceptance between National City and Bank One pursuant to which
National City assigns to Bank One a portion of its Commitment in the amount of
$5,000,000 and related Loans and Obligations and (c) an Assignment and
Acceptance between National City and U.S. Bank pursuant to which National City
assigns to U.S. Bank a portion of its Commitment in the amount of $5,000,000 and
related Loans and Obligations, each in form and substance satisfactory to the
Agent.
(c) NOTES. The Agent shall have received from the Borrower (a) an Amended
and Restated Syndicated Note payable by the Borrower to the order of KeyBank in
the amount of $40,000,000, (b) an Amended and Restated Syndicated Note payable
by the Borrower to the order of Bank One in the amount of $40,000,000 and (c) an
Amended and Restated Syndicated Note payable by the Borrower to the order of
U.S. Bank in the amount of $40,000,000, each in form and substance satisfactory
to the Agent.
(d) PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Amendment and all documents incident thereto
shall be reasonably satisfactory in substance and form to the Agent, and the
Agent shall have received all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably request.
(e) FEES. The Borrower shall have paid to the Agent the fees specified in
the fee letter dated as of October 14, 2003 between the Agent and the Borrower.
SECTION 4. AFFIRMATION AND ACKNOWLEDGMENT OF THE BORROWER AND THE
GUARANTORS.
(a) THE BORROWER. The Borrower hereby ratifies and confirms all of its
Obligations to the Lenders and the Agent and the Borrower hereby affirms its
absolute and unconditional promise to pay to the Lenders and the Agent the Loans
and all other Obligations under the Credit Agreement, as amended hereby.
(b) THE GUARANTORS. Each of the Guarantors hereby ratifies and confirms
all of its Obligations to the Lenders and the Agent and each of the Guarantors
hereby affirms its unconditional and irrevocable guaranty of the Obligations
under the Credit Agreement, as amended hereby.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each of the Guarantors and the
Borrower hereby represents and warrants to the Agent and the Lenders as follows:
(a) REPRESENTATION AND WARRANTIES. The representations and warranties of
each of the Guarantors and the Borrower contained in the Credit Agreement and
the other Loan Documents were true and correct in all material respects as of
the date when made and continue to be true and correct in all material respects
on the date hereof, except to the extent of changes resulting from transactions
contemplated by the Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse to the Guarantors and the Borrower, or to the extent that
such representations and warranties relate expressly to an earlier date.
(b) RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, and all documents, instruments and agreements related thereto, are
hereby ratified and confirmed in all respects and shall continue in full force
and effect. The Credit Agreement shall, together with this Amendment, be read
and construed as a single agreement. All references in the Credit Agreement or
any related agreement or
instrument shall hereafter refer to the Credit Agreement as amended hereby.
(c) AUTHORITY, ETC. The execution and delivery by each of the Guarantors
and the Borrower of this Amendment and the performance by each of the Guarantors
and the Borrower of their respective agreements and obligations under the Credit
Agreement as amended hereby are within the corporate authority of each such
Person and have been duly authorized by all necessary corporate action.
(d) ENFORCEABILITY OF OBLIGATIONS. This Amendment and the Credit
Agreement as amended hereby constitute the legal, valid and binding obligations
of each of the Guarantors and the Borrower, enforceable against each such Person
in accordance with their terms, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to, or
affecting generally the enforcement of, creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
(e) NO DEFAULT. No Default or Event of Default has occurred and is
continuing, and no Default or Event of Default will exist after execution and
delivery of, and after giving effect to, this Amendment.
SECTION 6. MISCELLANEOUS PROVISIONS. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER SEAL
AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
(c) This Amendment may be executed in any number of counterparts, but all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
(d) The Borrower hereby agrees to pay to the Agent, on demand by the
Agent, all reasonable legal fees and expenses incurred or sustained by the Agent
in connection with the preparation of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment
to be executed as of the date first written above.
STAPLES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Administrative Officer and
Executive Vice President
FLEET NATIONAL BANK, individually and as Agent
By: /s/ ▇▇▇▇▇ ALTO
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Name: ▇▇▇▇▇ Alto
Title: Director
CITICORP USA, INC., individually and as
Co-Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director and Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, individually and as
Co-Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
HSBC BANK USA, individually and as
Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: FVP
JPMORGAN CHASE BANK, individually
and as Co-Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SOVEREIGN BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
U.S BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice president
BANK ONE, NA
(Main Office Chicago)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ALLIED IRISH BANKS, PLC
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
KBC BANK NV
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
RATIFICATION OF GUARANTY
Each of the undersigned Guarantors hereby acknowledges and consents to
the foregoing Amendment, and agrees that the Guaranty from such Guarantor in
favor of the Agent for the benefit of the Agent and the Lenders and all other
Loan Documents to which such Guarantor is a party remain in full force and
effect, and each of the Guarantors confirms and ratifies all of its obligations
thereunder.
STAPLES THE OFFICE SUPERSTORE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Administrative Officer and
Executive Vice President
STAPLES THE OFFICE SUPERSTORE EAST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Administrative Officer and
Executive Vice President
STAPLES CONTRACT & COMMERCIAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Administrative Officer and
Executive Vice President
QUILL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
QUILL LINCOLNSHIRE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
ROCHESTER CAPITAL, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
HACKENSACK FUNDING LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer