Exhibit 10.1
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364-DAY TERM LOAN AGREEMENT
dated as of October 4, 2002
STAPLES, INC.
THE LENDERS NAMED HEREIN,
FLEET NATIONAL BANK,
AS AGENT,
WITH
FLEET SECURITIES, INC.
HAVING ACTED AS ARRANGER
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION...................................................1
SECTION 1.1. DEFINITIONS..........................................................................1
SECTION 1.2. RULES OF INTERPRETATION.............................................................15
SECTION 2. THE 364-DAY TERM LOAN FACILITY...........................................................16
SECTION 2.1. COMMITMENT TO LEND..................................................................16
SECTION 2.2. THE TERM NOTES......................................................................16
SECTION 2.3. MATURITY AND OTHER REPAYMENTS OF TERM LOAN..........................................17
2.3.1. MATURITY....................................................................17
2.3.2. OPTIONAL PREPAYMENTS OF TERM LOAN...........................................17
2.3.3. MANDATORY PREPAYMENTS.......................................................17
2.3.4. APPLICATION OF PAYMENTS.....................................................17
SECTION 2.4. INTEREST ON TERM LOAN...............................................................17
2.4.1. INTEREST RATES............................................................17
SECTION 2.5. CONVERSION OPTIONS..................................................................18
SECTION 2.5.1. CONVERSION OF THE TERM LOAN........................................18
SECTION 2.5.2. CONTINUATION OF A EURODOLLAR RATE LOAN.............................18
SECTION 3. CERTAIN GENERAL PROVISIONS; FEES.........................................................18
SECTION 3.1. CLOSING AND AGENT FEES.............................................................18
SECTION 3.2. FACILITY FEE.......................................................................19
SECTION 3.3. FUNDS FOR PAYMENTS.................................................................19
SECTION 3.3.1. PAYMENTS TO AGENT..................................................19
SECTION 3.3.2. NO OFFSET, ETC.....................................................19
SECTION 3.3.3. WITHHOLDING........................................................19
SECTION 3.4. COMPUTATIONS.......................................................................20
SECTION 3.5. INABILITY TO DETERMINE EURODOLLAR RATE.............................................20
SECTION 3.6. ILLEGALITY.........................................................................21
SECTION 3.7. ADDITIONAL COSTS, ETC..............................................................21
SECTION 3.8. CAPITAL ADEQUACY...................................................................22
SECTION 3.9. CERTIFICATE........................................................................23
SECTION 3.10. INDEMNITY..........................................................................23
SECTION 3.11. INTEREST ON OVERDUE AMOUNTS........................................................23
SECTION 3.12. REPLACEMENT OF INDIVIDUAL LENDERS..................................................24
SECTION 3.13. GUARANTIES.........................................................................24
SECTION 4. REPRESENTATIONS AND WARRANTIES...........................................................25
SECTION 4.1. CORPORATE AUTHORITY................................................................25
SECTION 4.1.1. INCORPORATION; GOOD STANDING.......................................25
SECTION 4.1.2. AUTHORIZATION......................................................25
SECTION 4.1.3. ENFORCEABILITY.....................................................25
SECTION 4.2. GOVERNMENTAL APPROVALS.............................................................26
SECTION 4.3. TITLE TO PROPERTIES; LEASES........................................................26
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SECTION 4.4. FINANCIAL STATEMENTS; FISCAL YEAR..................................................26
SECTION 4.5. NO MATERIAL CHANGES, ETC...........................................................26
SECTION 4.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC...............................................27
SECTION 4.7. LITIGATION.........................................................................27
SECTION 4.8. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.......................................27
SECTION 4.9. TAX STATUS.........................................................................27
SECTION 4.10. NO EVENT OF DEFAULT................................................................27
SECTION 4.11. HOLDING COMPANY AND INVESTMENT COMPANY ACTS........................................28
SECTION 4.12. EMPLOYEE BENEFIT PLANS.............................................................28
SECTION 4.12.1. IN GENERAL........................................................28
SECTION 4.12.2. TERMINABILITY OF WELFARE PLANS....................................28
SECTION 4.12.3. GUARANTEED PENSION PLANS..........................................28
SECTION 4.12.4. MULTIEMPLOYER PLANS...............................................29
SECTION 4.13. REGULATIONS U AND X, ETC...........................................................29
SECTION 4.14. ENVIRONMENTAL COMPLIANCE...........................................................29
SECTION 4.15. SUBSIDIARIES, ETC..................................................................30
SECTION 4.16. PURCHASE AGREEMENT.................................................................30
SECTION 4.17. PERMITTED DEBT.....................................................................30
SECTION 5. AFFIRMATIVE COVENANTS OF THE BORROWER....................................................30
SECTION 5.1. PUNCTUAL PAYMENT...................................................................30
SECTION 5.2. MAINTENANCE OF OFFICE..............................................................30
SECTION 5.3. RECORDS AND ACCOUNTS...............................................................31
SECTION 5.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.................................31
SECTION 5.5. NOTICES............................................................................32
SECTION 5.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES.........................................32
SECTION 5.7. INSURANCE..........................................................................33
SECTION 5.8. TAXES..............................................................................33
SECTION 5.9. INSPECTION OF PROPERTIES AND BOOKS, ETC............................................33
SECTION 5.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.............................34
SECTION 5.11. EMPLOYEE BENEFIT PLANS.............................................................34
SECTION 5.12. USE OF PROCEEDS....................................................................34
SECTION 5.13. LICENSES AND PERMITS...............................................................34
SECTION 5.14. CLOSING OF ACQUISITION.............................................................34
SECTION 5.15. PRO FORMA COMPLIANCE CERTIFICATE...................................................35
SECTION 5.16. FURTHER ASSURANCES.................................................................35
SECTION 6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER...............................................35
SECTION 6.1. RESTRICTIONS ON INDEBTEDNESS.......................................................35
SECTION 6.2. RESTRICTIONS ON LIENS..............................................................37
SECTION 6.3. RESTRICTIONS ON INVESTMENTS........................................................39
SECTION 6.4. DISTRIBUTIONS......................................................................40
SECTION 6.5. EMPLOYEE BENEFIT PLANS.............................................................40
SECTION 6.6. MERGER AND CONSOLIDATION; ACQUISITIONS.............................................41
SECTION 6.7. DISPOSITION OF ASSETS AND SALE-LEASEBACK TRANSACTIONS..............................41
SECTION 6.8. SUBORDINATED DEBT..................................................................41
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SECTION 7. FINANCIAL COVENANTS OF THE BORROWER......................................................42
SECTION 7.1. FIXED CHARGE COVERAGE RATIO........................................................42
SECTION 7.2. ADJUSTED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO.................................42
SECTION 8. CONDITIONS PRECEDENT.....................................................................42
SECTION 8.1. CLOSING CONDITIONS.................................................................42
SECTION 8.1.1. LOAN DOCUMENTS.....................................................42
SECTION 8.1.2. CERTIFIED COPIES OF CHARTER DOCUMENTS..............................42
SECTION 8.1.3. CORPORATE ACTION...................................................43
SECTION 8.1.4. INCUMBENCY CERTIFICATE.............................................43
SECTION 8.1.5. OPINION OF COUNSEL.................................................43
SECTION 8.1.6. PAYMENT OF FEES....................................................43
SECTION 8.1.7. COMPLIANCE CERTIFICATE.............................................43
SECTION 8.1.8. UCC SEARCH RESULTS.................................................43
SECTION 8.1.9. CERTIFICATE OF INSURANCE...........................................43
SECTION 8.1.10. NO MATERIAL ADVERSE CHANGE........................................43
SECTION 8.1.11. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.........................44
SECTION 8.1.12. NO LEGAL IMPEDIMENT...............................................44
SECTION 8.1.13. GOVERNMENTAL REGULATION...........................................44
SECTION 8.1.14. PROCEEDINGS AND DOCUMENTS.........................................44
SECTION 8.2. CONDITIONS TO FUNDING...............................................................44
SECTION 8.2.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT..........................44
SECTION 8.2.2. NO LEGAL IMPEDIMENT................................................45
SECTION 8.2.3. EUROPEAN COMMISSION APPROVAL.......................................45
SECTION 8.2.4. COMPLIANCE CERTIFICATE.............................................45
SECTION 8.2.5. DEADLINE FOR INITIAL DRAWDOWN......................................45
SECTION 9. EVENTS OF DEFAULT; ACCELERATION; ETC.....................................................45
SECTION 9.1. EVENTS OF DEFAULT AND ACCELERATION.................................................45
SECTION 9.2. REMEDIES...........................................................................49
SECTION 10. SETOFF..................................................................................49
SECTION 11. THE AGENT...............................................................................50
SECTION 11.1. AUTHORIZATION......................................................................50
SECTION 11.2. EMPLOYEES AND AGENTS...............................................................50
SECTION 11.3. NO LIABILITY.......................................................................51
SECTION 11.4. NO REPRESENTATIONS.................................................................51
SECTION 11.4.1. GENERAL...........................................................51
SECTION 11.4.2. CLOSING DOCUMENTATION, ETC........................................51
SECTION 11.5. PAYMENTS...........................................................................52
SECTION 11.5.1. PAYMENTS TO AGENT.................................................52
SECTION 11.5.2. DISTRIBUTION BY AGENT.............................................52
SECTION 11.5.3. DELINQUENT LENDERS................................................52
SECTION 11.6. HOLDERS OF TERM NOTES..............................................................52
SECTION 11.7. INDEMNITY..........................................................................52
SECTION 11.8. AGENT AS LENDER; ETC...............................................................53
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SECTION 11.9. RESIGNATION........................................................................53
SECTION 11.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT.....................................53
SECTION 12. EXPENSES................................................................................53
SECTION 13. INDEMNIFICATION.........................................................................54
SECTION 14. SURVIVAL OF COVENANTS, ETC..............................................................55
SECTION 15. ASSIGNMENT AND PARTICIPATION............................................................55
SECTION 15.1. CONDITIONS TO ASSIGNMENT BY LENDERS................................................55
SECTION 15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.....................56
SECTION 15.3. REGISTER...........................................................................56
SECTION 15.4. NEW TERM NOTES.....................................................................57
SECTION 15.5. PARTICIPATIONS.....................................................................57
SECTION 15.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER...............................57
SECTION 15.7. MISCELLANEOUS ASSIGNMENT PROVISIONS................................................58
SECTION 15.8. ASSIGNMENT BY BORROWER.............................................................58
SECTION 16. NOTICES, ETC............................................................................58
SECTION 17. GOVERNING LAW...........................................................................59
SECTION 18. HEADINGS................................................................................59
SECTION 19. COUNTERPARTS............................................................................60
SECTION 20. ENTIRE AGREEMENT, ETC...................................................................60
SECTION 21. WAIVER OF JURY TRIAL....................................................................60
SECTION 22. CONSENTS, AMENDMENTS, WAIVERS, ETC......................................................60
SECTION 23. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION...........................................61
SECTION 23.1. CONFIDENTIALITY....................................................................61
SECTION 23.2. PRIOR NOTIFICATION.................................................................62
SECTION 23.3. OTHER..............................................................................62
SECTION 24. SEVERABILITY............................................................................62
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EXHIBITS AND SCHEDULES
Exhibit A Form of Conversion Request
Exhibit B Form of Term Note
Exhibit C Form of Guaranty
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance
Schedule 1 Lenders
Schedule 2 Guarantors
Schedule 4.3 Title to Properties, Leases
Schedule 4.7 Litigation
Schedule 4.9 Taxes
Schedule 4.12 Pension Liabilities
Schedule 4.14 Environmental Compliance
Schedule 4.15(a) Subsidiaries
Schedule 4.15(b) Joint Ventures and Partnerships
Schedule 4.15(c) Equity Interests of 50% or Less
Schedule 6.1 Existing Indebtedness
Schedule 6.2 Existing Liens
Schedule 6.3 Existing Investments
364-DAY TERM LOAN AGREEMENT
This
364-DAY TERM LOAN AGREEMENT, dated as of October 4, 2002, is 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 hereto (the "LENDERS") and (c) FLEET NATIONAL BANK, as administrative
agent (in such capacity, the "AGENT") for the Lenders.
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Credit Agreement
referred to below:
ACQUIRED BUSINESS. The ▇▇▇▇▇▇▇▇ mail order office products business to be
acquired by the Borrower in accordance with the terms of Purchase Agreement.
ADJUSTMENT DATE. The date which is three (3) Business Days after a
Compliance Certificate is delivered by the Borrower pursuant to Section 5.4(c)
hereof.
AFFILIATE. Any Person that would be considered to be an affiliate of a
Person under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the Closing Date, if such Person were
issuing securities.
AGENT. As defined in the preamble hereto.
AGENT FEES. See Section 3.1 hereof.
AGENT'S HEAD OFFICE. The Agent's office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent may
designate from time to time.
AGENT'S SPECIAL COUNSEL. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or such other counsel as
may be approved by the Agent.
APPLICABLE MARGIN. The Applicable Margin shall be in effect for each
period commencing on an Adjustment Date through the date immediately preceding
the next Adjustment Date (each a "RATE ADJUSTMENT PERIOD") based on a
determination of the Fixed Charge Coverage Ratio and the Senior Debt Rating. The
Fixed Charge Coverage Ratio shall be determined as at the end of the fiscal
period for which financial statements and a Compliance Certificate have most
recently been delivered to the Agent pursuant to section 6.4 and the Senior Debt
Rating shall be determined as of the last day of the preceding Rate Adjustment
Period. The Applicable Margin shall be the applicable rate PER ANNUM,
corresponding to the lower of the Levels set forth in the table below (with
Level I being the lowest level and Level VI being the highest level)
corresponding to the Fixed Charge
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Coverage Ratio or the Senior Debt Rating, PROVIDED THAT if the Fixed Charge
Coverage Ratio and Senior Debt Rating are more than one Level apart, the
Applicable Margin shall be one Level below the higher of the two applicable
Levels. In the event that the Senior Debt Ratings assigned by ▇▇▇▇▇'▇ and S&P
are not equivalent, the following criteria shall determine which Level shall be
applicable to the Senior Debt Rating: (a) if the Senior Debt Ratings are one
Level apart, the Level applicable to the Senior Debt Rating shall be the lower
of the two Levels and (b) if the Senior Debt Ratings are more than one Level
apart, the Level applicable to the Senior Debt Rating shall be one Level below
the higher of the two Levels. For purposes of clarity, the parties hereto
acknowledge that the Applicable Margin with respect to a Eurodollar Rate Loan
shall be the rate per annum set forth in column D in the table below.
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A B C D
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LEVEL FIXED CHARGE COVERAGE SENIOR DEBT RATING EURODOLLAR RATE LOAN
RATIO
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I Greater than/equal to 2.75:1 S&P: A- 0.500%
▇▇▇▇▇'▇: A3 or better
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II Greater than/equal to 2.50:1 S&P: BBB+ 0.750%
and ▇▇▇▇▇'▇: Baa1 or better
Less than 2.75:1
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III Greater than/equal to 2.25:1 S&P: BBB 0.875%
and ▇▇▇▇▇'▇: Baa2 or better
Less than 2.50:1
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IV Greater than/equal to 2.00:1 S&P: BBB- 1.125%
and ▇▇▇▇▇'▇: Baa3 or better
Less than 2.25:1
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V Greater than/equal to 1.75:1 S&P: BB+ 1.500%
and ▇▇▇▇▇'▇: Ba1 or better
Less than 2.00:1
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VI Less than 1.75:1 lower than 1.750%
S&P: BB+
▇▇▇▇▇'▇: Ba1 or unrated
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Notwithstanding the foregoing, (A) for the period commencing on the
Closing Date through the date immediately preceding the first Adjustment Date,
the Applicable Margin shall be that corresponding to Level III in the table
above, and (B) if the Borrower fails to deliver any Compliance Certificate
pursuant to section 5.4(c) hereof then, for the period commencing on the date
such Compliance Certificate was due through the date immediately preceding the
Adjustment Date that occurs immediately following the date on which such
Compliance Certificate is delivered, the Applicable Margin shall be the
Applicable Margin corresponding to Level VI above, and (C) on and after the date
nine (9) months after the Closing Date, each Applicable Margin set forth above
shall be increased by one-quarter of one percent (0.25%).
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APPLICABLE PENSION LEGISLATION. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrower or any of its Subsidiaries.
APPROVED FUND. Any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
APPROVED LENDING GROUP. Any of (i) the lenders under the Revolving Credit
Agreement, (ii) any other Lender approved in accordance with section 15 hereof,
(iii) an Affiliate of any such lenders or (iv) an Approved Fund of any such
lenders.
ARRANGER. Fleet Securities, Inc., a Massachusetts corporation.
ASSIGNMENT AND ACCEPTANCE. See section 15.1 hereof.
BALANCE SHEET DATE. February 2, 2002.
BASE RATE. The higher of (a) the annual rate of interest announced from
time to time by Fleet at its office in Boston, Massachusetts, as its "prime
rate" and (b) one-half of one percent (1/2%) per annum above the Federal Funds
Effective Rate. For the purposes of this definition, "FEDERAL FUNDS EFFECTIVE
RATE" shall mean for any day, the rate per annum equal 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 that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three funds brokers of recognized
standing selected by the Agent. Changes in the Base Rate resulting from any
changes in Fleet's "prime rate" shall take place immediately without notice or
demand of any kind.
BASE RATE LOAN. The Term Loan when bearing interest calculated by
reference to the Base Rate.
BORROWER. As defined in the preamble hereto.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts and New York, New York, are open for the transaction of banking
business and, in the case of a Eurodollar Rate Loan, also a day which is a
Eurodollar Business Day.
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CAPITAL STOCK. With respect to any corporation, partnership, trust,
unincorporated association, joint venture, limited liability company, or other
legal or business entity, any and all shares, interests, participations or other
equivalent (however designated) of capital stock of such entity, any and all
limited or general partnership interests and equivalent ownership interests in
such entity, any and all warrants and options to purchase any of the foregoing,
and any securities convertible into any of the foregoing.
CAPITALIZED LEASES. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CAPITAL MARKETS OFFERING. Any public or private debt offering, including
any offering of convertible securities, by the Borrower or any of its
Subsidiaries.
CERCLA. The Comprehensive Environmental Response, Compensation and
Liability Act of 1980.
CLOSING DATE. The first date on which the conditions set forth in section
8.1 hereof have been satisfied, which shall be no later than October 31, 2002.
CODE. The Internal Revenue Code of 1986.
COMPLIANCE CERTIFICATE. See section 5.4(c) hereof.
CONFIDENTIAL INFORMATION. All information relating to the Borrower or any
of its Subsidiaries that is labeled by the Borrower or such Subsidiary as
confidential at the time such information is supplied by the Borrower or such
Subsidiary to a Lender, other than information which (a) is public knowledge or
generally available to the public, or (b) is obtained by any of the Lenders,
whether prior to or after disclosure to such Lender by the Borrower or any of
its Subsidiaries, from a source other than the Borrower or any of its
Subsidiaries, provided that such information is not known by such Lender to have
been disclosed by any party in violation of a confidentiality agreement with the
Borrower or any of its Subsidiaries, any other obligation of nondisclosure with
respect to the Borrower or any of its Subsidiaries or any applicable statutory
or regulatory limitation imposed on the disclosure of such information.
CONSOLIDATED OR CONSOLIDATED. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.
CONSOLIDATED ADJUSTED FUNDED DEBT. With respect to the Borrower and its
Subsidiaries, as at any date of determination, on a consolidated basis, the
aggregate of (a) Consolidated Total Funded Debt as of such date PLUS (b) (i)
Rental Expense for the period of twelve consecutive months then ended MULTIPLIED
BY (ii) eight (8).
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CONSOLIDATED EBIT. Consolidated net income (or deficit) of the Borrower
and its Subsidiaries, after deducting all expenses and other proper charges
other than interest expense, taxes and any noncash nonrecurring charges, and
excluding (a) all extraordinary and nonrecurring items of income but not losses
(except to the extent such extraordinary losses are offset by such extraordinary
income) and (b) all income or loss from any corporation, partnership, limited
liability company, joint venture or other entity in which the Borrower or any of
its Subsidiaries holds not more than a fifty percent (50%) ownership interest,
as determined in accordance with GAAP; PROVIDED that (i) there shall be excluded
in calculating consolidated net income (or deficit) for purposes of this
definition any noncash losses attributable to the use of a fair value
methodology for recognition and measurement of impairment of goodwill not
identified with impaired assets in accordance with Accounting Principles Board
Opinion No. 142 and (ii) for purposes of calculating the Obligor Group
Requirement, the Persons included in the calculation of Consolidated EBIT shall
be as set forth in the definition of Obligor Group Requirement.
CONSOLIDATED TOTAL ASSETS. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
CONSOLIDATED TOTAL FUNDED DEBT. With respect to the Borrower and its
Subsidiaries, as at any date of determination, on a consolidated basis, the
aggregate (without duplication) of (a) all outstanding Indebtedness of the
Borrower and its Subsidiaries relating to or in respect of (i) the borrowing of
money or the obtaining of credit, including the issuance of notes or bonds and
standby letters of credit outstanding but excluding documentary letters of
credit, (ii) the deferred purchase price of assets (other than trade payables
incurred in the ordinary course of business), (iii) any Synthetic Leases or any
Capitalized Leases, and (iv) the Securitization, PLUS (b) all Indebtedness of
the type referred to in clause (a) of another Person guaranteed by the Borrower
or any of its Subsidiaries.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all Indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of Capitalized Leases and Synthetic
Leases, and including facility fees, commitment fees, usage fees, agency fees,
balance deficiency fees, and similar fees or expenses in connection with the
borrowing of money, as determined in accordance with GAAP.
CONTINGENT LIABILITIES. Any guaranties, endorsements, obligations to
reimburse the issuer in respect of any letters of credit, agreements to purchase
or provide funds for the payment of obligations of others, or other liabilities
which would be classified as contingent in accordance with GAAP consistently
applied, excluding, however, (a) product warranties given in the ordinary course
of business, (b) endorsements of checks or other negotiable instruments for
deposit or collection in the ordinary course of
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business, and (c) reimbursement obligations in respect of documentary trade
letters of credit.
CONVERSION REQUEST. A notice given by the Borrower to the Agent in
substantially the form of EXHIBIT A hereto of the Borrower's election to convert
or continue an interest rate option in accordance with section 2.5 hereof.
CREDIT AGREEMENT. This
364-Day Term Loan Agreement, including the
Schedules and Exhibits hereto.
DEFAULT. See section 9.1 hereof.
DELINQUENT LENDER. See section 11.5.3 hereof.
DISTRIBUTION. The declaration or payment of any dividend on or in respect
of any shares of any class of Capital Stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of Capital
Stock of the Borrower, directly or indirectly through a Subsidiary of the
Borrower or otherwise; the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of Capital Stock of the Borrower.
DOLLARS or $. Dollars in lawful currency of the United States of America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender designated
as such in SCHEDULE 1 attached hereto; thereafter, such other office of such
Lender, if any, located within the United States that will be making or
maintaining a Base Rate Loan.
DOMESTIC SUBSIDIARY. Any Subsidiary that is organized under the laws of
the United States of America, any state or territory thereof or the District of
Columbia.
DRAWDOWN DATE. The date on which the Term Loan is made in accordance with
the terms hereof (the "Initial Drawdown Date"), and any date on which the
interest rate option with respect to the Term Loan is converted or continued in
accordance with section 2.5 hereof.
EC APPROVALS. See section 8.2.3 hereof.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of
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any such country, and having total assets in excess of $1,000,000,000, or the
central bank of any country which is a member of the OECD, PROVIDED, in each
case, that such bank (i) is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD and (ii) has delivered to the Agent, on the date on which the
Assignment and Acceptance to which such Eligible Assignee is a party becomes
effective, the forms referred to in section 3.3.3 hereof; (d) a Lender or an
Affiliate of a Lender; (e) Approved Fund and (f) other Person (other than a
natural person), in each case, approved in accordance with section 15.1 hereof.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
section 3(3) of ERISA maintained or contributed to by the Borrower, other than a
Guaranteed Pension Plan or a Multiemployer Plan.
ENVIRONMENTAL LAWS. Any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act ("RCRA"), CERCLA,
the Superfund Amendments and Reauthorization Act of 1986 ("▇▇▇▇"), the Federal
Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or
any state or local statute, regulation, ordinance, order or decree relating to
health, safety or the environment.
ENVIRONMENTAL NOTICE. Any notice to the Borrower or any of its
Subsidiaries from any third party including, without limitation: any federal,
state or local governmental authority, (a) that it has been identified by the
United States Environmental Protection Agency as a potentially responsible party
under CERCLA with respect to a site listed on the National Priorities List, 40
C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (b) that any Hazardous Substances which it has
generated, transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted or has ordered
that the Borrower or any of its Subsidiaries conduct a remedial investigation,
removal or other response action pursuant to any Environmental Law; or (c) that
it is or shall be a named party to any claim, action, cause of action,
complaint, or legal or administrative proceeding in connection with the release
of Hazardous Substances.
EQUITY ISSUANCE. The sale or issuance by the Borrower or any of its
Subsidiaries of any of its Capital Stock excluding (i) such issuances as part of
mergers or other acquisitions and (ii) any such sales or issuances between the
Borrower and its Affiliates or to any employee of the Borrower or its
Affiliates.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with
the Borrower under section 414 of the Code.
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ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "EUROCURRENCY
LIABILITIES" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other interbank market as may be selected by the Agent in its sole discretion
acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Lender
designated as such in SCHEDULE 1 attached hereto; thereafter, such other office
of such Lender, if any, that shall be making or maintaining a Eurodollar Rate
Loan.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the rate (rounded upwards to the
nearest 1/16 of one percent) per annum at which the Reference Lender's
Eurodollar Lending Office is offered Dollar deposits two (2) Eurodollar Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Rate Loan to which such
Interest Period applies, divided by (b) a number equal to 1.00 MINUS the
Eurocurrency Reserve Rate.
EURODOLLAR RATE LOAN. The Term Loan or the Term Loan Amount, as
applicable, when bearing interest calculated by reference to the Eurodollar
Rate.
EVENT OF DEFAULT. See section 9.1 hereof.
FACILITY FEE. See section 3.2 hereof.
FEE LETTER. See section 3.1 hereof.
FINANCIAL AFFILIATE. A Subsidiary of the bank holding company controlling
any Lender, which Subsidiary is engaging in any of the activities permitted by
section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. section 1843).
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FIXED CHARGE COVERAGE RATIO. See section 7.1 hereof.
FLEET. Fleet National Bank, a national banking association, in its
individual capacity.
FUND. Any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
GAAP OR GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (a) When used in
sections 6 and 7 hereof and in the calculation of the Obligor Group Requirement,
whether directly or indirectly through reference to a capitalized term used
therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of GAAP a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in GAAP) as to financial statements in which such principles have been properly
applied.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTIES. The Guaranty by each Guarantor in favor of the Agent for the
benefit of the Lenders and the Agent, dated as of the date hereof, and each
additional guaranty executed by a Subsidiary acquired or formed after the date
hereof.
GUARANTORS. Those Subsidiaries of the Borrower listed on SCHEDULE 2
attached hereto, as such schedule may be modified from time to time in
accordance with section 3.13 hereof.
▇▇▇▇▇▇▇▇ ACQUISITION. The purchase by the Borrower of certain assets
substantially on the terms set forth in the Purchase Agreement.
▇▇▇▇▇▇▇▇ ACQUISITION CLOSING DATE: The date on which the conditions set
forth in the Purchase Agreement have been satisfied or waived and the ▇▇▇▇▇▇▇▇
Acquisition has occurred.
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HAZARDOUS SUBSTANCES. Any hazardous waste, as defined by 42 U.S.C.
section 6903(5), any hazardous substances as defined by 42 U.S.C. section
9601(14), any pollutant or contaminant as defined by 42 U.S.C. section 9601(33)
and any toxic substances, oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws.
INDEBTEDNESS. All obligations, contingent and otherwise, that in
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, or to which reference should be made by footnotes thereto,
including in any event and whether or not so classified: (a) all debt and
similar monetary obligations, whether direct or indirect; (b) all liabilities
secured by any mortgage, pledge, security interest, lien, charge or other
encumbrance existing on property owned or acquired subject thereto, whether or
not the liability secured thereby shall have been assumed; (c) all obligations
in respect of interest rate protection arrangements and exchange rate protection
arrangements; (d) all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness of others, including any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase indebtedness, or to assure the owner of
indebtedness against loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer in respect of any letters of credit; and (e) every obligation of such
Person under any Synthetic Lease.
INITIAL DRAWDOWN DATE. See definition of Drawdown Date.
INTEREST PAYMENT DATE. (a) As to any Base Rate Loan, the last day of the
calendar quarter which includes the Drawdown Date thereof and (b) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (i) 3 months or
less, the last day of such Interest Period and (ii) more than 3 months, the date
that is 3 months from the first day of such Interest Period, the last day of
each 3 month period thereafter, and, in addition, the last day of such Interest
Period.
INTEREST PERIOD. (a)(i) for any Base Rate Loan, the last day of the
calendar quarter; and (ii) for any Eurodollar Rate Loan, 1, 2, 3 or 6 months,
and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period and ending on the last day of one of the periods set forth
above, as selected by the Borrower in a Conversion Request; PROVIDED that all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(A) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
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(B) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end
on the next succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in section
2.5 hereof, the Borrower shall be deemed to have requested a conversion
of the affected Eurodollar Rate Loan to a Base Rate Loan and the
continuance of a Base Rate Loan as a Base Rate Loan on the last day of
the then current Interest Period with respect thereto;
(D) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Eurodollar Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
JOINDER AGREEMENTS. Joinder agreements in a form of acceptable to the
Agent pursuant to which Subsidiaries of the Borrower become parties to and agree
to be bound by the provisions of the Guaranty as a Guarantor.
LENDER AFFILIATE. With respect to any Lender, (a) an Affiliate of such
Lender or (b) any Approved Fund.
LENDERS. As defined in the preamble hereto, which term shall include any
other Person who becomes an assignee of any rights and obligations of a Lender
pursuant to
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section 16 hereof. Unless the context otherwise requires, the term "Lenders"
includes the Agent in its capacity as lender of the Term Loan.
LOAN DOCUMENTS. This Credit Agreement, the Term Notes, the Guaranties,
the Fee Letter and any other documents delivered pursuant to this Credit
Agreement.
MARGIN REGULATIONS. See section 4.13 hereof.
MATURITY DATE. The date 364 days after the Closing Date or such earlier
date as the Term Loan is paid or payable in full, or in the event that the
Borrower does not consummate the ▇▇▇▇▇▇▇▇ Acquisition on or before December 31,
2002, then December 31, 2002.
MEASUREMENT PERIOD. See section 7.1 hereof.
MOODY'S. ▇▇▇▇▇'▇ Investors Service, Inc.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NET CASH CAPITAL MARKETS OFFERING PROCEEDS. With respect to any Capital
Markets Offering, the excess of the gross cash proceeds received by such Person
for Capital Markets Offering after deduction of all reasonable and customary
transaction expenses (including, without limitation, underwriting discounts and
commissions) actually incurred in connection with such an offering.
NET CASH EQUITY ISSUANCE PROCEEDS. With respect to any Equity Issuance,
the excess of the gross cash proceeds received by such Person for such Equity
Issuance after deduction of all reasonable and customary transaction expenses
(including, without limitation, underwriting discounts and commissions) actually
incurred in connection with such a sale or other issuance.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries arising or incurred under this Credit Agreement or
any of the other Loan Documents or in respect of the Term Loan or other
instruments at any time evidencing any thereof, whether existing on the date of
this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise.
OBLIGOR GROUP. Collectively, the Borrower and the Guarantors (including
any Subsidiary of the Borrower which as of any date of determination has become
a Guarantor pursuant to the provisions of this Credit Agreement).
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OBLIGOR GROUP REQUIREMENT. The requirement that, as of any date of
determination, Consolidated EBIT of the Obligor Group for the Measurement Period
most recently ended shall not be less than $275,000,000.
PBGC. The Pension Benefit Guaranty Corporation created by section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted under section 6.2 hereof.
PERSON. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, unincorporated association,
business, or other legal entity, and any government or any governmental agency
or political subdivision thereof.
PURCHASE AGREEMENT: The Sale and Purchase Agreement, dated as of August
21, 2002, by and among ▇▇▇▇▇▇▇▇, Reliable UK, VPC Systems and the Borrower.
RATE ADJUSTMENT PERIOD. See definition of Applicable Margin.
REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
RECORD. The grid attached to a Term Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Term Note.
REFERENCE LENDER. Fleet.
RENTAL EXPENSE. All obligations of the Borrower or any of its
Subsidiaries under any rental agreements or leases of real property relating to
retail stores, other than obligations in respect of Capitalized Leases and
Synthetic Leases.
REPLACEMENT LENDER. See section 3.12 hereof.
REQUIRED LENDERS. As of any date, the Lenders holding more than fifty
percent (50%) of the outstanding principal amount of the Term Loan on such date.
REVOLVING CREDIT AGREEMENT. That certain Revolving Credit Agreement,
dated as of June 21, 2002, among (a) the Borrower, (b) the lenders named
therein, (c) Fleet, as administrative agent, (d) Citicorp USA, Inc. and Wachovia
Bank, National Association, as co-syndication agents, and (e) HSBC Bank USA and
JPMorgan Chase Bank, as co-documentation agents.
S&P. Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc.
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SECURITIZATION. The securitization by the Borrower and certain of its
Subsidiaries of up to $300,000,000 of third-party accounts receivable on the
terms and conditions set forth in the (a) Receivables Purchase Agreement, dated
as of October 27, 2000, among the Borrower, Lincolnshire Funding, LLC, Corporate
Receivables Corporation, the financial institutions from time to time party
thereto as Purchasers, and Citicorp North America, Inc., as Agent, and (b)
Receivables Sale Agreement, dated as of October 27, 2000, among the Borrower,
Quill Corporation, Staples Contract & Commercial, Inc. and Hackensack Funding,
LLC, each as delivered to the Agent prior to the Closing Date and as in effect
on the Closing Date, and in each case as amended with the consent of the
Lenders, and any replacement or successor accounts receivable financing facility
which contains terms and conditions which are substantially similar to the
securitization described in clauses (a) and (b).
SENIOR DEBT RATING. The rating issued by S&P or ▇▇▇▇▇'▇ with respect to
unsecured Indebtedness of the Borrower not maturing within twelve months, issued
without third-party credit enhancement, and not subordinated by its term in
right of payment to other Indebtedness of the Borrower. In the event that no
such ratings are available on such unsecured Indebtedness of the Borrower, the
Senior Debt Rating shall be the rating implied, in the reasonable discretion of
the Agent, to such unsecured Indebtedness by reference to such other
Indebtedness of the Borrower as shall be so rated.
STOCKHOLDERS' EQUITY. As at any date of determination, the sum of (a) the
capital accounts including common stock and preferred stock, but excluding
treasury stock of the Borrower PLUS (b) the earned surplus and capital surplus
of the Borrower (excluding adjustments to translate foreign assets and
liabilities for changes in foreign exchange rates made in accordance with
Financial Accounting Standards Board Statement No. 52), as determined in
accordance with GAAP.
SUBORDINATED DEBT. Unsecured Indebtedness of the Borrower or any of its
Subsidiaries that is expressly subordinated and made junior to the payment and
performance of the Obligations, and evidenced as such by a written instrument
containing subordination provisions in form and substance approved by the
Required Lenders in writing.
SUBSIDIARY. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock and the accounts of which are consolidated with the
Borrower in accordance with GAAP.
SUBSTITUTED LENDER. See section 3.12 hereof.
SYNTHETIC LEASE. Any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
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TERM LOAN. The term loan made or to be made by the Lenders to the
Borrower on the Closing Date in the principal amount of $325,000,000 pursuant to
section 2.1.
TERM LOAN AMOUNT. With respect to each Lender, such Lender's Term Loan
Percentage MULTIPLIED BY the amount of the Term Loan, as the same may be reduced
from time to time in accordance with the terms of this Credit Agreement.
TERM LOAN PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1 attached hereto.
TERM NOTE. See section 4.2.
VOTING STOCK. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
SECTION 1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "INCLUDE", "INCLUDES" and "INCLUDING" are not
limiting.
(g) All terms not specifically defined herein or by GAAP, which
terms are defined in the Uniform Commercial Code as in effect in the
Commonwealth of Massachusetts, have the meanings assigned to them therein, with
the term "instrument" being that defined under Article 9 of the Uniform
Commercial Code.
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(h) Reference to a particular "section" refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "HEREIN", "HEREOF", "HEREUNDER" and words of like
import shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including," the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among others,
the Agent and the Borrower and are the product of discussions and negotiations
among all parties. Accordingly, this Credit Agreement and the other Loan
Documents are not intended to be construed against the Agent or any of the
Lenders merely on account of the Agent's or any Lender's involvement in the
preparation of such documents.
SECTION 2. THE 364-DAY TERM LOAN FACILITY.
SECTION 2.1. COMMITMENT TO LEND. (a) subject to the terms and conditions
set forth in this Credit Agreement, each Lender agrees to lend to the Borrower
on the Initial Drawdown Date the amount equal to its Term Loan Percentage of the
principal amount of Three Hundred Twenty-Five Million Dollars ($325,000,000);
(b) this Credit Agreement, and the obligations of the Lenders hereunder
(including the obligation of the Lenders to lend the Term Loan to the Borrower),
shall terminate, and the provisions of this Credit Agreement shall no longer
have force or effect, if the Term Loan has not been advanced to the Borrower on
or before December 31, 2002; and (c) the Agent's Special Counsel shall hold the
Term Notes in escrow and (i) shall release such Term Notes to the Lenders on the
Initial Drawdown Date or (ii) shall return such Term Notes to the Borrower upon
the termination of this Credit Agreement and the obligations of the Lenders
hereunder in accordance with this section 2.1.
SECTION 2.2. THE TERM NOTES. The Term Loan shall be evidenced by separate
promissory notes of the Borrower in substantially the form of EXHIBIT B hereto
(each a "TERM NOTE"), dated the Closing Date (or such other date on which a
Lender may become a party hereto in accordance with section 15 hereof) and
completed with appropriate insertions. One Term Note shall be payable to the
order of each Lender in a principal amount equal to such Lender's Term Loan
Amount and representing the obligation of the Borrower to pay to such Lender
such principal amount, plus interest accrued
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thereon, as set forth below. The Borrower irrevocably authorizes each Lender to
make or cause to be made a notation on such Lender's Term Note Record reflecting
the original principal amount of such Lender's Term Loan Percentage of the Term
Loan and, at or about the time of such Lender's receipt of any principal payment
on such Lender's Term Note, an appropriate notation on such Lender's Term Note
Record reflecting such payment. The aggregate unpaid amount set forth on such
Lender's Term Note Record shall be PRIMA FACIE evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to record, or any error
in so recording, any such amount on such Lender's Term Note Record shall not
affect the obligations of the Borrower hereunder or under any Term Note to make
payments of principal of and interest on any Term Note when due.
SECTION 2.3. MATURITY AND OTHER REPAYMENTS OF TERM LOAN.
2.3.1. MATURITY. The Borrower promises to pay on the Maturity Date,
and there shall become absolutely due and payable on the Maturity Date, all of
the outstanding principal amount of the Term Loan on such date, together with
any and all accrued and unpaid interest thereon.
2.3.2. OPTIONAL PREPAYMENTS OF TERM LOAN. The Borrower shall have
the right, at its election, to prepay the Term Loan on or before the Maturity
Date, as a whole or in part, at any time, subject to section 3.10, without
penalty or premium. The Borrower shall give the Agent, prior written notice no
later than 1:00 p.m., Boston time, three (3) Business Days' prior to any
proposed prepayment pursuant to this section 2.3.2 of the Term Notes, and
specifying the proposed date of prepayment and the principal amount to be
prepaid. Each such partial prepayment of the Term Loan shall be in an integral
multiple of $5,000,000, shall be accompanied by the payment of accrued interest
on the principal prepaid to the date of prepayment.
2.3.3. MANDATORY PREPAYMENTS. The Borrower shall pay to the Agent
for the respective accounts of the Lenders an amount equal to one hundred
percent (100%) of (i) Net Cash Equity Issuance Proceeds or (ii) Net Cash Capital
Markets Offering Proceeds other than $325,000,000 in debt offering proceeds
described in the offering memorandum dated September 25, 2002, in each case,
concurrently with the receipt thereof by the Borrower or any Subsidiary.
2.3.4. APPLICATION OF PAYMENTS. All payments made shall be allocated
among the Lenders in proportion, as nearly as practicable, to the respective
outstanding amounts of each Lender's Term Loan Percentage, with adjustments to
the extent practicable to equalize any prior prepayments not exactly in
proportion. No amounts repaid with respect to the Term Loan may be reborrowed.
SECTION 2.4. INTEREST ON TERM LOAN.
2.4.1. INTEREST RATES. Except as otherwise provided in section 3.11:
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(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day
of the Interest Period with respect thereto at the rate per annum
equal to the Base Rate.
(b) Each Eurodollar Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the
last day of the Interest Period with respect thereto at the
Eurodollar Rate determined for such Interest Period PLUS the
Applicable Margin.
The Borrower promises to pay interest in arrears on each Interest
Payment Date.
SECTION 2.5. CONVERSION OPTIONS.
SECTION 2.5.1. CONVERSION OF THE TERM LOAN. The Borrower may elect
from time to time to convert the interest rate with respect to the Term Loan,
PROVIDED that (a) with respect to any such conversion of a Eurodollar Rate Loan
to a Base Rate Loan, the Borrower shall give the Agent at least one (1) Business
Day's prior written notice of such election; (b) with respect to any such
conversion of a Base Rate Loan to a Eurodollar Rate Loan, the Borrower shall
give the Agent at least three (3) Eurodollar Business Days' prior written notice
of such election; (c) with respect to any such conversion of a Eurodollar Rate
Loan into a Base Rate Loan, such conversion shall only be made on the last day
of the Interest Period with respect thereto; and (d) no Base Rate Loan may be
converted into a Eurodollar Rate Loan when any Default or Event of Default has
occurred and is continuing. Each Conversion Request relating to the conversion
of the Term Loan to a Eurodollar Rate Loan shall be irrevocable by the Borrower.
SECTION 2.5.2. CONTINUATION OF A EURODOLLAR RATE LOAN. Any
Eurodollar Rate Loan may be continued as a Eurodollar Rate Loan upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in section 2.5.1 hereof; PROVIDED
that no Eurodollar Rate Loan may be continued as such when any Default or Event
of Default has occurred and is continuing, but shall be automatically converted
to a Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of Default of
which officers of the Agent active upon the Borrower's account have actual
knowledge. In the event that the Borrower fails to provide any such notice with
respect to continuation of a Eurodollar Rate Loan as such, then such Eurodollar
Rate shall be automatically converted to a Base Rate Loan on the last day of the
Interest Period relating thereto. The Agent shall notify the Lenders and the
Borrower promptly when any such automatic conversion contemplated by this
section 2.5.2 is scheduled to occur.
SECTION 3. CERTAIN GENERAL PROVISIONS; FEES.
SECTION 3.1. CLOSING AND AGENT FEES. The Borrower shall pay (a) to the
Agent for the accounts of the Lenders on the Closing Date a closing fee as set
forth in that certain letter agreement, dated as of the September 18, 2002 (as
such agreement may be amended and in effect from time to time, the "FEE LETTER")
by and among the Borrower, the Agent and
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the Arranger and (b) the fees (the "AGENT FEES") to the Agent and the Arranger
in the amounts and at the times set forth in the Fee Letter.
SECTION 3.2. FACILITY FEE
During the period from the date 31 days after the Closing Date through
but excluding the Initial Drawdown Date, the Borrower agrees to pay to the Agent
for the accounts of the Lenders in accordance with their respective Term Loan
Percentages a facility fee (the "FACILITY FEE"), which shall be calculated for
each day at a per annum rate of 0.150% on the undrawn principal amount of the
Term Loan. The Facility Fee shall be payable quarterly in arrears on the last
day of each calendar quarter for the calendar quarter then ended commencing on
the first such date following the date 31 days after the Closing Date, with a
final payment on the Initial Drawdown Date or any earlier date that the
obligation of the Lenders to lend the Term Loan to the Borrower shall terminate.
SECTION 3.3. FUNDS FOR PAYMENTS.
SECTION 3.3.1. PAYMENTS TO AGENT. All payments of principal,
interest and any other fees or amounts due hereunder or under any of the other
Loan Documents shall be made to the Agent, for the respective accounts of the
Lenders and the Agent, at the Agent's Head Office or at such other location in
the Boston, Massachusetts area that the Agent may from time to time designate,
in each case in immediately available funds.
SECTION 3.3.2. NO OFFSET, ETC. All payments by the Borrower
hereunder and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or hereafter imposed or
levied by any jurisdiction or any political subdivision thereof or taxing or
other authority therein unless the Borrower is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the Borrower
with respect to any amount payable by it hereunder or under any of the other
Loan Documents, other than (a) with respect to taxes based upon the Agent's or
any Lender's net income, or (b) with respect to amounts owing to a Lender that
(i) is not incorporated under the laws of the United States of America or a
state thereof and (ii) has not delivered to the Agent the forms referred to in
section 3.3.3 hereof, the Borrower will pay to the Agent, for the account of the
Lenders or (as the case may be) the Agent, on the date on which such amount is
due and payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Lenders or the Agent to
receive the same net amount which the Lenders or the Agent would have received
on such due date had no such obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Agent certificates or other valid vouchers
for all taxes or other charges deducted from or paid with respect to payments
made by the Borrower hereunder or under such other Loan Document.
SECTION 3.3.3. WITHHOLDING. Each Lender and the Agent that is not a
U.S. Person as defined in Section 7701(a)(30) of the Code for federal income tax
purposes (a "NON-
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U.S. LENDER") hereby agrees that, if and to the extent it is legally able to do
so, it shall, on the date it becomes a Lender hereunder, deliver to the Borrower
and the Agent such certificates, documents or other evidence, as and when
required by the Code or Treasury Regulations issued pursuant thereto, including
(a) in the case of a Non-U.S. Lender that is a "bank" for purposes of Section
881(c)(3)(A) of the Code, two (2) duly completed copies of Internal Revenue
Service Form W-8BEN or Form W-8ECI and any other certificate or statement of
exemption required by Treasury Regulations, or any subsequent versions thereof
or successors thereto, properly completed and duly executed by such Lender or
the Agent establishing that with respect to payments of principal, interest or
fees hereunder it is (i) not subject to United States federal withholding tax
under the Code because such payment is effectively connected with the conduct by
such Lender or Agent of a trade or business in the United States or (ii) totally
exempt from United States federal withholding tax under a provision of an
applicable tax treaty and (b) in the case of a Non-U.S. Lender that is not a
"bank" for purposes of Section 881(c)(3)(A) of the Code, a certificate in form
and substance reasonably satisfactory to the Agent and the Borrower and to the
effect that (i) such Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as a bank
for purposes of any tax, securities law or other filing or submission made to
any governmental authority, any application made to a rating agency or
qualification for any exemption from any tax, securities law or other legal
requirements, (ii) is not a ten (10) percent shareholder for purposes of Section
881(c)(3)(B) of the Code and (iii) is not a controlled foreign corporation
receiving interest from a related person for purposes of Section 881(c)(3)(C) of
the Code, together with a properly completed Internal Revenue Service Form W-8
or W-9, as applicable (or successor forms). Each Lender or the Agent agrees that
it shall, promptly upon a change of its lending office or the selection of any
additional lending office, to the extent the forms previously delivered by it
pursuant to this section are no longer effective, and promptly upon the
Borrower's or the Agent's reasonable request after the occurrence of any other
event (including the passage of time) requiring the delivery of a Form W-8BEN,
Form W-8ECI, Form W-8 or W-9 in addition to or in replacement of the forms
previously delivered, deliver to the Borrower and the Agent, as applicable, if
and to the extent it is properly entitled to do so, a properly completed and
executed Form W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or any
successor forms thereto).
SECTION 3.4. COMPUTATIONS. All computations of interest on a Base Rate
Loan and other fees shall be based on a 365-day or 366-day year, as applicable,
and all computations of interest on a Eurodollar Rate Loan shall be based on a
360-day year, and, in each case, paid for the actual number of days elapsed.
Except as otherwise provided in the definition of the term "INTEREST PERIOD"
with respect to a Eurodollar Rate Loan, whenever a payment hereunder or under
any of the other Loan Documents becomes due on a day that is not a Business Day,
the due date for such payment shall be extended to the next succeeding Business
Day, and interest shall accrue during such extension.
SECTION 3.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior
to the commencement of any Interest Period relating to any Eurodollar Rate Loan,
the Agent
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shall determine or be notified by the Required Lenders that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Lenders) to the Borrower and the Lenders. In such event (a) any Conversion
Request with respect to a Eurodollar Rate Loan shall be automatically withdrawn
and shall be deemed a request for a Base Rate Loan, (b) each Eurodollar Rate
Loan will automatically, on the last day of the then current Interest Period
relating thereto, become a Base Rate Loan, and (c) the obligations of the
Lenders to make a Eurodollar Rate Loan shall be suspended until the Agent or the
Required Lenders, as applicable, determine that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent or, as the case may be, the
Agent upon the instruction of the Required Lenders, shall so notify the Borrower
and the Lenders.
SECTION 3.6. ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain a Eurodollar Rate Loan, such Lender shall forthwith give notice
of such circumstances to the Borrower and the other Lenders and thereupon the
commitment of such Lender to make or convert to a Eurodollar Rate Loan shall
forthwith be suspended and such Lender's Term Loan Amount then outstanding as a
Eurodollar Rate Loan, if any, shall be converted automatically to Base Rate Loan
on the last day of each Interest Period applicable to such Eurodollar Rate Loan
or within such earlier period as may be required by law. The Borrower hereby
agrees promptly to pay the Agent for the account of such Lender, upon demand by
such Lender, any additional amounts necessary to compensate such Lender for any
costs incurred by such Lender in making any conversion in accordance with this
section 3.6, including any interest or fees payable by such Lender to lenders of
funds obtained by it in order to make or maintain its Eurodollar Rate Loan
hereunder.
SECTION 3.7. ADDITIONAL COSTS, ETC. If any change after the Closing Date
to any present applicable law or if any future applicable law, which expression,
as used herein, includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents or the Term Loan (other than taxes based
upon or measured by the income or profits of such Lender or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of or the
interest on the
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Term Loan or any other amounts payable to any Lender or the Agent under this
Credit Agreement or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, any Lender, or
(d) impose on any Lender or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan Documents or
the Term Loan,
and the result of any of the foregoing is:
(i) to increase the cost to any Lender, of making, funding,
issuing, renewing, extending or maintaining its Term Loan Amount, or
(ii) to reduce the amount of principal, interest, or other
amount payable to such Lender or the Agent hereunder, or
(iii) to require such Lender or the Agent to make any payment
or to forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such Lender or the
Agent from the Borrower hereunder,
then, in each such case and to the extent that the amount such additional cost,
reduction, payment, foregone interest or other sum is not reflected in the Base
Rate or the Eurodollar Rate, the Borrower will, upon demand made by such Lender
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Lender or the Agent such
additional amounts as will be sufficient to compensate such Lender or the Agent
for such additional cost, reduction, payment or foregone interest or other sum
(without duplication for recovery of such amounts under any other provision
hereof), PROVIDED that the Borrower shall not be liable to any Lender or the
Agent for costs incurred more than sixty (60) days prior to receipt by the
Borrower of such demand for payment from such Lender or (as the case may be) the
Agent unless such costs were incurred prior to such 60-day period solely as a
result of such present or future applicable law being retroactive to a date
which occurred prior to such 60-day period.
SECTION 3.8. CAPITAL ADEQUACY. If after the Closing Date any Lender or
the Agent determines that the adoption of or change in any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) regarding capital requirements for banks or bank holding companies
or any change in the interpretation or application thereof by a court or
governmental authority with appropriate
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jurisdiction has the effect of reducing the return on such Lender's or the
Agent's the Term Loan Amount to a level below that which such Lender or the
Agent could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's or the Agent's then existing policies with
respect to capital adequacy and assuming full utilization of such entity's
capital) by any amount deemed by such Lender or (as the case may be) the Agent
to be material, then such Lender or the Agent may notify the Borrower of such
fact. To the extent that the amount of such reduction in the return on capital
is not reflected in the Base Rate or the Eurodollar Rate then the Borrower
agrees to pay such Lender or (as the case may be) the Agent for the amount of
such reduction in the return on capital as and when such reduction is determined
upon presentation by such Lender or (as the case may be) the Agent of a
certificate in accordance with section 3.9 hereof, PROVIDED that the Borrower
shall not be liable to any Lender or the Agent for costs incurred more than
sixty (60) days prior to receipt by the Borrower of the notice referred to in
the immediately preceding sentence from such Lender or (as the case may be) the
Agent. Each Lender shall allocate such cost increases among its customers in
good faith and on an equitable basis.
SECTION 3.9. CERTIFICATE. A certificate setting forth any additional
amounts payable pursuant to sections 3.7 or 3.8 hereof and a brief explanation
of such amounts which are due, submitted by any Lender or the Agent to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing. If the Borrower is required to pay any additional amounts pursuant to
sections 3.7 or 3.8 hereof with respect to any Lender, the Borrower may,
following payment in full of the amount or amounts due set forth in such
certificate, take the actions permitted by section 3.12 hereof to replace such
Lender.
SECTION 3.10. INDEMNITY. The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from and against all redeployment costs or expenses
that such Lender may reasonably sustain or incur as a consequence of (a) default
by the Borrower in payment of the principal amount of or any interest on any
Eurodollar Rate Loan as and when due and payable, including any such cost or
expense arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its Eurodollar Rate Loan, (b) default by the
Borrower in making a conversion after the Borrower has given (or is deemed to
have given) a Conversion Request relating thereto in accordance with section 2.5
hereof, or (c) the making of any payment of a Eurodollar Rate Loan or the making
of any conversion of any such Eurodollar Rate Loan to a Base Rate Loan on a day
that is not the last day of the applicable Interest Period with respect thereto,
including, without limitation, any payments made under sections 2.3.2, 2.3.3 or
3.12, including interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain the Eurodollar Rate Loan.
SECTION 3.11. INTEREST ON OVERDUE AMOUNTS.
Overdue principal and (to the extent permitted by applicable law)
interest on the Term Loan and all other overdue amounts payable hereunder or
under any of the other Loan Documents, if not repaid on or before the fifth
calendar day following the day such payment was due, shall bear interest from
the due date thereof, compounded monthly and payable on demand at any time from
and after fifth calendar day following the day
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such payment was due, at a rate per annum equal to two percent (2%) above the
rate of interest then applicable thereto (or, if no rate of interest is then
applicable there to, the Base Rate until such amount shall be paid in full
(after as well as before judgment)).
SECTION 3.12. REPLACEMENT OF INDIVIDUAL LENDERS. Upon the happening of
any of the events set forth in sections 3.6, 3.7 or 3.8, the Borrower may
(PROVIDED that at the time no Default or Event of Default exists or would result
after giving effect to the Borrower's action) replace each affected Lender (a
"SUBSTITUTED LENDER"), subject to the following conditions:
(a) the Borrower shall have delivered to the Agent not less than ten
(10) Business Days prior to the exercise of its rights under this section 3.12 a
written commitment in form and substance satisfactory to the Agent and each of
the Lenders from a banking institution (the "REPLACEMENT LENDER") reasonably
acceptable to the Agent and each of the remaining Lenders (other than the
Substituted Lender) in which such Replacement Lender agrees to become a "LENDER"
under this Credit Agreement, having a Term Loan Amount in the amount of the
Substituted Lender's Term Loan Amount;
(b) the Borrower shall have given appropriate notice of any
prepayment under this section 3.12 as required by section 3.7 and subject to all
other provisions of this Credit Agreement;
(c) the Substituted Lender shall have assigned, pursuant to section
15 hereof, the Term Loan Amount and other Obligations of such Substituted Lender
to the Replacement Lender and such Replacement Lender shall have become a Lender
under this Credit Agreement having a Term Loan Amount in the amount of such
Substitute Lender's Term Loan Amount; and
(d) the Borrower shall have paid all other Obligations owed to the
Substituted Lender.
SECTION 3.13. GUARANTIES. The payment and performance of the Obligations
shall be guaranteed by each Guarantor pursuant to the Guaranties, each of which
shall be in the form of EXHIBIT C hereto. The Borrower may cause additional
Subsidiaries of the Borrower to become Guarantors hereunder (if such
Subsidiaries become guarantors of the Revolving Credit Agreement) by causing
such Subsidiary or Subsidiaries to agree to be bound by the provisions of the
Guaranty, to execute and deliver a Joinder Agreement and to deliver such legal
opinions and other documents and instruments as the Agent may request. The Agent
and the Lenders hereby agree that they shall, upon the written request of the
Borrower and at the cost and expense of the Borrower, release any Guarantor from
its obligations to the Agent and the Lenders under the Guaranty to which such
Guarantor is a party if, and only if, (a) no Default or Event of Default shall
have occurred and be continuing on the date of such release, (b) the Borrower
shall be in compliance with the Obligor Group Requirement after giving effect to
such release, (c) the Borrower shall have delivered to the Agent and the Lenders
on the date of such
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release a certificate signed by an authorized officer of the Borrower and
evidence satisfactory to the Agent and the Lenders showing compliance with the
provisions of clauses (a) and (b) hereof and (d) such Guarantor has been
released as a guarantor of the Revolving Credit Agreement. The Borrower shall
deliver to the Lenders an updated SCHEDULE 2 upon the release or addition of any
Guarantor as provided in this section 3.13.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the Agent as
follows:
SECTION 4.1. CORPORATE AUTHORITY.
SECTION 4.1.1. INCORPORATION; GOOD STANDING. The Borrower and each
Guarantor (a) is a corporation or, as the case may be, a Massachusetts Business
Trust duly organized, validly existing and in good standing under the laws of
its state of incorporation or organization, (b) has all requisite corporate or,
as the case may be, trust power to own its property and conduct its business as
now conducted and as presently contemplated, and (c) is in good standing as a
foreign corporation and is duly authorized to do business in each jurisdiction
where such qualification is necessary except where a failure to be so qualified
would not have a materially adverse effect on the business, assets or financial
condition of the Borrower.
SECTION 4.1.2. AUTHORIZATION. The execution, delivery and
performance of this Credit Agreement and the other Loan Documents by the
Borrower and each Guarantor which is or is to become a party thereto, and the
transactions contemplated hereby and thereby (a) are within the corporate or, as
the case may be, trust authority of such Person, (b) have been duly authorized
by all necessary corporate or, as the case may be, trust proceedings, (c) do not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which such Person is subject which would have a
material adverse effect either individually or in the aggregate on the Borrower
and its Subsidiaries taken as a whole or on the ability of such Person to
fulfill its obligations under this Credit Agreement and the other Loan Documents
to which it is a party, (d) do not conflict with or result in any breach or
contravention of any judgment, order, writ, injunction, license or permit
applicable to the Borrower or any Guarantor and (e) do not conflict with any
provision of the corporate charter or bylaws or, as the case may be, the
Agreement and Declaration of Trust of, or any agreement or other instrument
binding upon, the Borrower or any Guarantor.
SECTION 4.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which the Borrower or any
Guarantor is or is to become a party will result in valid and legally binding
obligations of such Person enforceable against it in accordance with the
respective terms and provisions hereof and thereof, 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.
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SECTION 4.2. GOVERNMENTAL APPROVALS. The execution, delivery and
performance by the Borrower and the Guarantors of this Credit Agreement and the
other Loan Documents to which the Borrower or any Guarantor is or is to become a
party and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any governmental agency or authority
other than those already obtained.
SECTION 4.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE
4.3 hereto, the Borrower and its Subsidiaries own all of the assets reflected in
the consolidated balance sheet of the Borrower as at the Balance Sheet Date or
acquired since that date (except property and assets sold or otherwise disposed
of in the ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Permitted Liens.
SECTION 4.4. FINANCIAL STATEMENTS; FISCAL YEAR. (a) There has been
furnished to each of the Lenders an audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the Balance Sheet Date, and consolidated
statements of income and cash flow of the Borrower and its Subsidiaries for the
fiscal year then ended, certified by Ernst & Young LLP. Such balance sheet and
statements of income and cash flows have been prepared in accordance with GAAP
and fairly present the financial condition of the Borrower and its Subsidiaries
as at the close of business on the date thereof and the results of operations
for the fiscal year then ended. There are no contingent liabilities of the
Borrower or any of its Subsidiaries as of such date involving material amounts,
known to the officers of the Borrower, which were not disclosed in such balance
sheet and the notes related thereto.
(b) There has been furnished to each of the Lenders an unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at August 3,
2002, and unaudited consolidated statements of income and cash flow of the
Borrower and its Subsidiaries for the fiscal quarter then ended. Such balance
sheet and statements of income and cash flows have been prepared in accordance
with GAAP and fairly present the financial condition of the Borrower and its
Subsidiaries as at the close of business on the date thereof and the results of
operations for the fiscal quarter then ended (subject to year-end adjustments).
There are no contingent liabilities of the Borrower or any of its Subsidiaries
as of such date involving material amounts, known to the officers of the
Borrower, which were not disclosed in such balance sheet and the notes related
thereto.
(c) The Borrower has a fiscal year which is the 52/53 week period ending
on the Saturday closest to January 31st of each year.
SECTION 4.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date there
has occurred no change in the operations, business, properties, assets or
financial condition of the Borrower and its Subsidiaries as shown on or
reflected in the consolidated balance sheet of the Borrower and its Subsidiaries
as at the Balance Sheet Date, or the consolidated statements of income and cash
flows for the fiscal year then ended, other than changes in the ordinary course
of business that have not had any materially adverse effect either
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individually or in the aggregate on the business, assets or financial condition
of the Borrower and its Subsidiaries taken as a whole. Since the Balance Sheet
Date, the Borrower has not made any Distributions except Distributions made in
compliance with section 6.4 hereof.
SECTION 4.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and each
of its Subsidiaries possesses all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted without
known conflict with any rights of others.
SECTION 4.7. LITIGATION. Except as set forth in SCHEDULE 4.7 hereto,
there are no actions, suits, proceedings or investigations of any kind pending
or, to the best of the Borrower's knowledge, threatened against the Borrower or
any of its Subsidiaries before any court, tribunal or administrative agency or
board that, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of the Borrower and its Subsidiaries taken as a whole, or
materially impair the right of the Borrower and each of its Subsidiaries to
carry on business substantially as now conducted by it, or result in any
substantial liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the consolidated balance sheet of the Borrower
and its Subsidiaries or which question the validity of this Credit Agreement or
any of the other Loan Documents, or any action taken or to be taken pursuant
hereto or thereto.
SECTION 4.8. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower nor any of its Subsidiaries is in violation of any provision of its
charter documents, bylaws (or equivalent constitutive documents), or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of substantial penalties or materially and adversely affect the
financial condition, properties or business of the Borrower and its Subsidiaries
taken as a whole.
SECTION 4.9. TAX STATUS. The Borrower and each of its Subsidiaries (a)
has made or filed all applicable federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to which it is
subject, (b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (c) has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. Except as set forth on SCHEDULE 4.9 attached hereto, there
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Borrower know of no basis
for any such claim.
SECTION 4.10. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
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SECTION 4.11. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
Borrower nor any of its Subsidiaries is a "HOLDING COMPANY", or a "SUBSIDIARY
COMPANY" of a "HOLDING COMPANY", or an "AFFILIATE" of a "HOLDING COMPANY", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
such Person an "INVESTMENT COMPANY", or a "PRINCIPAL UNDERWRITER" of an
"INVESTMENT COMPANY", or a company controlled by an "INVESTMENT COMPANY", as
such terms are defined in the Investment Company Act of 1940.
SECTION 4.12. EMPLOYEE BENEFIT PLANS.
SECTION 4.12.1. IN GENERAL. Each Employee Benefit Plan has been
maintained and operated in compliance in all material respects with the
provisions of ERISA, all Applicable Pension Legislation, and, to the extent
applicable, the Code, including but not limited to the provisions thereunder
respecting the bonding of fiduciaries and other persons handling plan funds as
required by section 412 of ERISA. No prohibited transaction has occurred that
would result in material liability for the Borrower or any of its Subsidiaries.
SECTION 4.12.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of section
3(1) or section 3(2)(B) of ERISA provides benefit coverage subsequent to
termination except as required by Title I, Subtitle B, Part 6 of ERISA or
applicable state law. The Borrower may terminate each such Plan at any time (or
at any time subsequent to the expiration of any applicable bargaining agreement)
in the discretion of the Borrower without liability to any Person other than for
claims arising or benefits accruing prior to termination.
SECTION 4.12.3. GUARANTEED PENSION PLANS. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of section 302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization periods
has been received with respect to any Guaranteed Pension Plan, and neither the
Borrower nor any ERISA Affiliate is obligated to or has posted security in
connection with an amendment to a Guaranteed Pension Plan pursuant to section
307 of ERISA or section 401(a)(29) of the Code. No liability to the PBGC (other
than required insurance premiums, all of which have been paid) has been incurred
by the Borrower or any ERISA Affiliate with respect to any Guaranteed Pension
Plan and there has not been any ERISA Reportable Event, or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of the date of
this representation), and on the actuarial methods and assumptions employed for
that valuation, except as set forth on SCHEDULE 4.12 attached hereto, the
aggregate benefit liabilities of all such Guaranteed Pension Plans within the
meaning of section 4001 of ERISA did not exceed the aggregate value of the
assets of all such Guaranteed Pension Plans, disregarding for this purpose the
benefit liabilities and assets of any Guaranteed Pension Plan with assets in
excess of benefit liabilities.
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SECTION 4.12.4. MULTIEMPLOYER PLANS. Neither the Borrower nor any
ERISA Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under section 4201 of ERISA or as a
result of a sale of assets described in section 4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning of section 4241
or section 4245 of ERISA or is at risk of entering reorganization or becoming
insolvent, or that any Multiemployer Plan intends to terminate or has been
terminated under section 4041A of ERISA.
SECTION 4.13. REGULATIONS U AND X, ETC. The proceeds of the Term Loan
shall be used for the purposes described in section 5.12 hereof. No portion of
the Term Loan is to be used for the purpose of purchasing or carrying any
"MARGIN SECURITY" or "MARGIN STOCK" (as such terms are used in Regulations U and
X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224 (the "MARGIN REGULATIONs")) in violation of the Margin Regulations.
SECTION 4.14. ENVIRONMENTAL COMPLIANCE. The Borrower has taken all
reasonably necessary steps to investigate the past and present condition and
usage of the Real Estate and the operations conducted thereon and, based upon
such diligent investigation, has determined that:
(a) none of the Borrower, its Subsidiaries nor any operator of the
Real Estate or any operations thereon is in violation, or alleged violation, of
any Environmental Laws, which violation would have a material adverse effect on
the business, assets or financial condition of the Borrower and its Subsidiaries
taken as a whole;
(b) neither the Borrower nor any of its Subsidiaries has received
any Environmental Notice during the last five (5) years that has the potential
to materially affect the assets, liabilities, financial condition or operations
of the Borrower and its Subsidiaries taken as a whole, except as set forth on
SCHEDULE 4.14 hereto;
(c) except as set forth on SCHEDULE 4.14 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing, storage
or disposal of Hazardous Substances; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of the Real Estate; in each case except in accordance with applicable
Environmental Laws the noncompliance with which would have a material adverse
effect on the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole; (ii) in the course of any activities conducted
by the Borrower or operators of its properties, no Hazardous Substances have
been generated or are being used on the Real Estate except in accordance with
applicable Environmental Laws the noncompliance with which would have a material
adverse effect on the business, assets or financial condition of the Borrower
and its Subsidiaries, taken as a whole; (iii) there have been no releases or
threatened releases of Hazardous Substances on, upon, into or from the
properties of the Borrower or any of its
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Subsidiaries, which releases would have a material adverse effect on the
business, assets or financial condition of the Borrower and its Subsidiaries,
taken as a whole; (iv) to the best of the Borrower's knowledge, there have been
no releases on, upon, from or into any real property in the vicinity of any of
the Real Estate which, through soil or groundwater contamination, may have come
to be located on the Real Estate and which would have a material adverse effect
on the Borrower and its Subsidiaries, taken as a whole; and (v) in addition, any
Hazardous Substances that have been generated on any of the Real Estate have, to
the best of the Borrower's knowledge, been transported offsite only as required
under and in compliance with applicable Environmental Laws.
SECTION 4.15. SUBSIDIARIES, ETC. As of the Closing Date, other than those
Subsidiaries of the Borrower described on SCHEDULE 4.15(a) attached hereto, the
Borrower has no other Subsidiaries. As of the Closing Date, except as set forth
on SCHEDULE 4.15(b) attached hereto, neither the Borrower nor any Subsidiary of
the Borrower is engaged in any joint venture or partnership with any other
Person. As of the Closing Date, except as set forth on SCHEDULE 4.15(c) attached
hereto, neither the Borrower nor any Subsidiary of the Borrower owns or has
acquired an equity interest of fifty percent (50%) or less in any other Person.
The Borrower hereby agrees to deliver to the Lenders an updated SCHEDULE
4.15(a), SCHEDULE 4.15(b) or SCHEDULE 4.15(c), as applicable, upon the
acquisition or formation by the Borrower of any Subsidiary, the formation of any
joint venture or partnership by the Borrower or any of its Subsidiaries with any
other Person or the acquisition by the Borrower or any of its Subsidiaries of an
equity interest of fifty percent (50%) or less in any other Person, in each case
in accordance with the provisions of this Credit Agreement.
SECTION 4.16. PURCHASE AGREEMENT. The Borrower has furnished to the Agent
true, complete and correct copies of the Purchase Agreement (excluding
schedules, exhibits and annexes thereto) as of the date hereof.
SECTION 4.17. PERMITTED DEBT. The incurrence of the Indebtedness
hereunder, including without limitation, the Obligations, will be permitted by
the terms of all other Indebtedness as of the date of such incurrence.
SECTION 5. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as the Term Loan or any
other Obligation is outstanding:
SECTION 5.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay
or cause to be paid the principal and interest on the Term Loan, the Agent Fees,
all other fees and other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower is a party, all in accordance with
the terms of this Credit Agreement and such other Loan Documents.
SECTION 5.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office in Framingham, Massachusetts, or at such other place in the
United States of America as the Borrower shall designate upon written notice to
the Agent, where
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notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents to which the Borrower is a party may be given or made.
SECTION 5.3. RECORDS AND ACCOUNTS. The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP and
(b) maintain adequate accounts and reserves for all taxes, depreciation,
depletion, obsolescence and amortization of its properties and the properties of
its Subsidiaries, contingencies, and other reserves.
SECTION 5.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower will deliver to the Agent (and the Agent will promptly, after receipt
thereof, deliver to the Lenders):
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such year,
and the related consolidated statement of income and consolidated statement of
cash flow for such year, each setting forth in comparative form the figures for
the previous fiscal year and all such consolidated statements to be in
reasonable detail, prepared in accordance with GAAP, and certified without
qualification by Ernst & Young LLP or by other independent certified public
accountants reasonably satisfactory to the Agent;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such quarter, and the related consolidated
statement of income and consolidated statement of cash flow for the portion of
the Borrower's fiscal year then elapsed, all in reasonable detail and prepared
in accordance with GAAP, together with a certification by the chief financial
officer or the treasurer of the Borrower that to the best of the Borrower's
knowledge, the information contained in such financial statements fairly
presents the financial position of the Borrower and its Subsidiaries on the date
thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the chief
financial officer or the treasurer of the Borrower in substantially the form of
EXHIBIT D attached hereto (a "COMPLIANCE CERTIFICATE") and setting forth in
reasonable detail computations evidencing compliance with the covenants
contained in section 7 hereof, a calculation of the Obligor Group Requirement
and (if applicable) reconciliations to reflect changes in GAAP since the Balance
Sheet Date;
(d) from time to time such other financial data and information as
the Agent or any Lender may reasonably request; and
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(e) (i) promptly upon becoming aware of the occurrence of any actual
or claimed "EVENT OF TERMINATION" under and as defined in any of the documents
relating to the Securitization, notice thereof, which notice shall describe such
Event of Termination and indicate what steps the Borrower and its Subsidiaries
are taking to remedy the same and (ii) promptly upon request therefor, such
other information with respect to the Securitization as the Agent shall
reasonably request.
All Confidential Information concerning the Borrower supplied by the Borrower to
the Lenders pursuant to the terms hereof will be held in confidence by the
Lenders and the Lenders shall not disclose such Confidential Information except
as permitted by section 23 of this Credit Agreement.
SECTION 5.5. NOTICES. The Borrower will promptly notify the Agent for the
benefit of the Lenders in writing of the occurrence of any Default or Event of
Default. The Borrower will promptly give notice to the Agent for the benefit of
the Lenders (a) of any material violation of any Environmental Law that the
Borrower or any of its Subsidiaries reports in writing or is reportable by such
Person in writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental liability,
or any federal, state or local environmental agency or board, that has the
potential to materially affect the assets, liabilities, financial conditions or
operations of the Borrower. The Borrower will give notice to the Agent for the
benefit of the Lenders in writing within fifteen (15) days of becoming aware of
any litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Borrower or any of its Subsidiaries or to which
the Borrower or any of its Subsidiaries is or becomes a party involving an
uninsured claim against the Borrower or any of its Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Borrower and
its Subsidiaries taken as a whole and stating the nature and status of such
litigation or proceedings. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Agent for the benefit of the Lenders, in
writing, in form and detail satisfactory to the Agent, within ten (10) days of
any judgment not covered by insurance, final or otherwise, against the Borrower
or any of its Subsidiaries in an amount in excess of $1,000,000.
SECTION 5.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower
will do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence, rights and franchises and those of its
Subsidiaries and will not, and will not cause or permit any of the Guarantors
to, convert to a limited liability company or a limited liability partnership
unless simultaneously with such conversion the Borrower or such Guarantor shall
have executed and delivered to the Agent all documentation which the Agent
reasonably determines is necessary to continue the Borrower's or such
Guarantor's obligations in respect of this Credit Agreement or the Guaranty, as
applicable. It (a) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary
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equipment, (b) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and (c)
will, and will cause each of its Subsidiaries to, continue to engage primarily
in the businesses now conducted by them and in related businesses; PROVIDED that
nothing in this section 5.6 shall prevent the Borrower from discontinuing the
operation and maintenance of any of its properties or any of those of its
Subsidiaries if such discontinuance is, in the judgment of the Borrower,
desirable in the conduct of its or their business and does not in the aggregate
materially adversely affect the business of the Borrower and its Subsidiaries on
a consolidated basis.
SECTION 5.7. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent. At the request of the Agent, the Borrower shall deliver
from time to time a summary schedule indicating all insurance then in force with
respect to the Borrower and its Subsidiaries.
SECTION 5.8. TAXES. The Borrower will, and will cause each of its
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; PROVIDED that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED FURTHER that the Borrower
and each Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor or shall have
obtained such bonding as may be required to release such lien.
SECTION 5.9. INSPECTION OF PROPERTIES AND BOOKS, ETC. The Borrower shall
permit the Lenders, through the Agent or any of the Lenders' other designated
representatives, no more frequently than once each calendar year, or more
frequently as determined by the Lenders upon the occurrence and during the
continuance of an Event of Default, to visit and inspect any of the properties
of the Borrower or any of its Subsidiaries, and each such inspection, if no
Event of Default has occurred and is continuing, shall be at the Lenders'
expense. The Borrower shall also permit the Lenders, through the Agent or any of
the Lenders' other designated representatives, to examine the books of account
of the Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the Borrower
and its Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable
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times and intervals as the Agent or any Lender may reasonably request. The
Borrower authorizes the Agent and, if accompanied by the Agent, the Lenders to
communicate directly with the Borrower's independent certified public
accountants and authorizes such accountants to disclose to the Agent and the
Lenders any and all financial statements and other supporting financial
documents and schedules with respect to the business, financial condition and
other affairs of the Borrower or any of its Subsidiaries.
SECTION 5.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower will, and will cause each of its Subsidiaries to, comply with (a) the
applicable laws and regulations wherever its business is conducted, including
all Environmental Laws, (b) the provisions of its charter documents and by-laws
(or equivalent constitutive documents), (c) all agreements and instruments by
which it or any of its properties may be bound and (d) all applicable decrees,
orders, and judgments, in each case if noncompliance with which would have a
material adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries, taken as a whole, or on the ability of the
Borrower or any of the Guarantors to fulfill its obligations under this Credit
Agreement or any of the other Loan Documents to which such Person is a party. If
any authorization, consent, approval, permit or license from any officer, agency
or instrumentality of any government shall become necessary or required in order
that the Borrower may fulfill any of its obligations hereunder or any of the
other Loan Documents to which the Borrower is a party, the Borrower will, or (as
the case may be) will cause such Subsidiary to, immediately take or cause to be
taken all reasonable steps within the power of the Borrower or such Subsidiary
to obtain such authorization, consent, approval, permit or license and furnish
the Agent and the Lenders with evidence thereof.
SECTION 5.11. EMPLOYEE BENEFIT PLANS. The Borrower will (a) promptly upon
request of the Agent, furnish to the Agent a copy of the most recent actuarial
statement required to be submitted under section 103(d) of ERISA and Annual
Report, Form 5500, with all required attachments, in respect of each Guaranteed
Pension Plan and (b) promptly upon receipt or dispatch, furnish to the Agent any
notice, report or demand sent or received in respect of a Guaranteed Pension
Plan under sections 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA,
or in respect of a Multiemployer Plan, under sections 4041A, 4202, 4219, 4242,
or 4245 of ERISA.
SECTION 5.12. USE OF PROCEEDS. The Borrower will use the proceeds of the
Term Loan to finance, in part, the ▇▇▇▇▇▇▇▇ Acquisition.
SECTION 5.13. LICENSES AND PERMITS. The Borrower will maintain and renew
any and all licenses or permits now held or hereafter acquired by the Borrower
or any of its Subsidiaries unless the loss, suspension, revocation or failure to
renew any such licenses or permits would not have a material adverse effect on
the business or financial condition of the Borrower and such Subsidiary.
SECTION 5.14. CLOSING OF ACQUISITION. The Borrower shall consummate the
▇▇▇▇▇▇▇▇ Acquisition substantially in accordance with the terms of the Purchase
Agreement no
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later than December 31, 2002. The Borrower shall give the Agent prompt written
notice thereof.
SECTION 5.15. PRO FORMA COMPLIANCE CERTIFICATE. The Borrower shall
deliver to the Lenders a Compliance Certificate, dated as of the ▇▇▇▇▇▇▇▇
Acquisition Closing Date, and based on financial statements prepared on a PRO
FORMA basis which include the Obligations and any other financing arrangements
made by the Borrower in connection with the ▇▇▇▇▇▇▇▇ Acquisition and all
interest, fees and expenses related thereto.
SECTION 5.16. FURTHER ASSURANCES. The Borrower will, and will cause each
of the Guarantors to, cooperate with the Lenders and the Agent and execute such
further instruments and documents as the Lenders or the Agent shall reasonably
request to carry out to their satisfaction the transactions contemplated by this
Credit Agreement and the other Loan Documents.
SECTION 6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as the Term Loan or any
other Obligation is outstanding:
SECTION 6.1. RESTRICTIONS ON INDEBTEDNESS. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume, guarantee or
become or remain liable, contingently or otherwise, with respect to Indebtedness
other than:
(a) Indebtedness to the Lenders and the Agent arising under any of
the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary incurred
in the ordinary course of business not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for credit on an open account
basis customarily extended and in fact extended in connection with normal
purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of section 5.8 hereof;
(d) Indebtedness in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower or such
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
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(f) Indebtedness in respect of documentary letters of credit issued
in the ordinary course of business;
(g) Indebtedness of the Borrower in respect of interest rate
protection arrangements and exchange rate protection arrangements;
(h) Indebtedness existing on the Closing Date and listed and
described on SCHEDULE 6.1 hereto or any refinancing thereof on substantially
similar terms as the Indebtedness being refinanced;
(i) Subordinated Debt;
(j) obligations under Capitalized Leases;
(k) Indebtedness incurred by the Borrower and its Subsidiaries under
the Securitization;
(l) Indebtedness in respect of intercompany loans, guaranties and,
so long as no Default or Event of Default shall have occurred and be continuing
at the time such Indebtedness is incurred, other Investments and contingent
obligations to make Investments, (i) from the Borrower to any of its
Subsidiaries or of any of its Subsidiaries' obligations or (ii) between
Subsidiaries of the Borrower or of any of the Borrower's Subsidiaries'
obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of
any of the Borrower's obligations;
(m) Indebtedness incurred in connection with the acquisition after
the Closing Date of any real or personal property by the Borrower or any
Subsidiary of the Borrower as contemplated by section 6.2(ix) hereof;
(n) Indebtedness secured by a lien on Real Estate of the Borrower or
its Subsidiaries; PROVIDED that the aggregate amount of Indebtedness permitted
pursuant to this section 6.1(n) shall not, at any time, exceed the fair market
value of the Real Estate securing such Indebtedness;
(o) other Indebtedness of the Borrower and its Subsidiaries (whether
or not such Subsidiaries are Guarantors), PROVIDED that (i) with respect to
Indebtedness incurred by the Borrower or a Guarantor, such Indebtedness contains
covenants that are no more restrictive on the Borrower or such Guarantor than
the covenants contained in this Credit Agreement and (ii) immediately after such
incurrence of Indebtedness, and after giving effect thereto on a PRO FORMA
basis, no Default or Event of Default shall then exist;
(p) Indebtedness consisting of Investments permitted under section
6.3(m) hereof; and
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(q) Indebtedness payable at the election of the Borrower by the
issuance of the Borrower's capital stock.
Notwithstanding the foregoing, at no time shall the aggregate amount of
Indebtedness of the Borrower and its Subsidiaries consisting of guaranties and
other Contingent Liabilities (excluding (i) Indebtedness permitted pursuant to
section 6.1 to the extent such Indebtedness (or if such Indebtedness is a
Contingent Liability of the Borrower and/or its Subsidiaries, the underlying
Indebtedness relating to such Contingent Liability) is included in the
calculation of Consolidated Total Funded Debt) and (ii) obligations in respect
of documentary letters of credit) exceed, in the aggregate, 15% of the
Stockholders' Equity of the Borrower at such time. For purposes of this Section,
the amount of Contingent Liabilities in respect of interest rate protection
arrangements and exchange rate protection arrangements permitted under section
6.1(g) at any time shall be the net liability of the Borrower and its
Subsidiaries under such arrangements at such time, calculated on a basis
satisfactory to the Agent in accordance with accepted practice.
SECTION 6.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not
permit any of its Subsidiaries to, (a) create or incur or suffer to be created
or incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (b) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (d) suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency under the laws of the United States of
America or any state thereof, or otherwise, be given any priority whatsoever
over its general creditors; or (e) sell, assign, pledge or otherwise transfer
any accounts, contract rights, general intangibles, chattel paper or
instruments, with or without recourse; PROVIDED that the Borrower and any
Subsidiary of the Borrower may create or incur or suffer to be created or
incurred or to exist:
(i) liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries of the
Borrower to the Borrower;
(ii) liens to secure taxes, assessments and other government charges
and liens to secure claims for labor, material or supplies, in each case in
respect of obligations not overdue or which are being contested in good faith
and by appropriate proceedings and for which the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto;
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(iii) deposits or pledges made in connection with, or to secure
payment of, worker's compensation, unemployment insurance, old age pensions or
other social security obligations;
(iv) liens in respect of judgments or awards that have been in force
for less than the applicable period for taking an appeal so long as execution is
not levied thereunder or in respect of which the Borrower or such Subsidiary is
at the time in good faith prosecuting an appeal and in respect of which a stay
of execution shall have been obtained pending such appeal or shall have obtained
an unsecured bond sufficient to release such lien;
(v) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens, in respect of obligations not overdue or, if such obligations
are overdue, being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary shall have set aside on its books adequate
reserves with respect thereto, PROVIDED that no proceeding to foreclose any such
lien shall have been commenced;
(vi) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and defects
and irregularities in the title thereto, landlord's or lessor's liens under
Capitalized Leases to which the Borrower or a Subsidiary of the Borrower is a
party, and other minor liens or encumbrances none of which in the opinion of the
Borrower interferes materially with the use of the property affected in the
ordinary conduct of the business of the Borrower and its Subsidiaries, which
defects do not individually or in the aggregate have a materially adverse effect
on the business of the Borrower individually or of the Borrower and its
Subsidiaries on a consolidated basis;
(vii) liens existing on the Closing Date and listed on SCHEDULE 6.2
attached hereto or liens on the same assets in connection with the refinancing
of such existing liens;
(viii) liens arising in the ordinary course of business of the
Borrower or a Subsidiary of the Borrower none of which in the opinion of the
Borrower interferes materially with the use of the property affected in the
ordinary course of business of the Borrower and its Subsidiaries and which do
not, individually or in the aggregate, have a materially adverse effect on the
business of the Borrower or such Subsidiary individually or of the Borrower and
its Subsidiaries on a consolidated basis;
(ix) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the Closing Date to secure
purchase money Indebtedness of the type permitted by section 6.1(m) hereof,
incurred in connection with the acquisition of such property, which security
interests or mortgages cover only the real or personal property so acquired;
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(x) liens on accounts receivable of the Borrower and/or its
Subsidiaries that are the subject of and secure the Securitization;
(xi) liens securing other permitted Indebtedness that does not
exceed $25,000,000 in the aggregate;
(xii) liens in respect of the interests of lessors under Capitalized
Leases; and
(xiii) liens on Real Estate securing Indebtedness permitted under
section 6.1(n) hereof.
SECTION 6.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will
not permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America;
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of (i) United States or Canadian banks having total assets in
excess of $1,000,000,000 or (ii) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development (the "OECD"), or a political subdivision of such country, and
having total assets in excess of $1,000,000,000, PROVIDED that such bank is
acting through a branch or agency located in the country in which its is
organized or another country which is a member of the OECD;
(c) (i) securities commonly known as "commercial paper" denominated
in Dollars which at the time of purchase have been rated and the ratings for
which are not less than "P 1" if rated by ▇▇▇▇▇'▇, and not less than "A 1" if
rated by S&P; and (ii) securities commonly known as "short-term bank notes"
issued by any Lender denominated in Dollars which at the time of purchase have
been rated and the ratings for which are not less than "P 2" if rated by
▇▇▇▇▇'▇, and not less than "A 2" if rated by S&P;
(d) Investments existing on the Closing Date and listed on SCHEDULE
6.3 attached hereto;
(e) Investments with respect to Indebtedness permitted by section
6.1(k) hereof so long as such entities remain Subsidiaries of the Borrower;
(f) taxable or tax-exempt securities which at the time of purchase
have been rated and the ratings for which are not less than A 3 if rated by
▇▇▇▇▇'▇, and not less than A- if rated by S&P;
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(g) Investments consisting of loans and advances to employees of the
Borrower or any Subsidiary of the Borrower, not exceeding $10,000,000 in the
aggregate at any one time outstanding;
(h) options to invest in or to lease real property to be used in the
operations of the Borrower or any Subsidiary of the Borrower;
(i) guaranties by endorsement of negotiable instruments for deposit
or collection or similar transactions effected in the ordinary course of
business;
(j) (i) the Borrower's or any Subsidiary's guaranty of the
Indebtedness of any Subsidiary or the Borrower, and (ii) any other Investments
by the Borrower or any Subsidiary in any Subsidiary or the Borrower;
(k) Investments by the Borrower or any Subsidiary of the Borrower to
acquire a more than fifty percent (50%) equity interest in any Person, PROVIDED
that such acquisition is permitted under section 6.6 hereof;
(l) Investments by the Borrower or any Subsidiary of the Borrower to
acquire up to a fifty percent (50%) equity interest in another Person, PROVIDED
that (i) such Person is in the same line of business as the Borrower or such
Subsidiary, as applicable, (ii) the aggregate amount of (A) such Investments in
such Person and (B) existing Investments made by the Borrower or any Subsidiary
pursuant to this section 6.3(l) shall at no time exceed 65% of the Stockholders'
Equity of the Borrower, and (iii) the consideration for such interest shall be
the exchange by the Borrower or such Subsidiary as applicable, of a certain
number of shares of its common stock for equity securities of the other Person
and/or the payment in cash in an aggregate cash amount for any such Investment
not to exceed $50,000,000; and
(m) Investments consisting of Distributions permitted by section
6.4.
SECTION 6.4. DISTRIBUTIONS. The Borrower will not declare any dividend or
make any Distribution if any Default or Event of Default has occurred and is
continuing or would result after giving effect to such Distribution.
SECTION 6.5. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA
Affiliate will: (a) engage in any "PROHIBITED TRANSACTION" within the meaning of
section 406 of ERISA or section 4975 of the Code which could result in a
material liability for the Borrower or any of its Subsidiaries; or (b) permit
any Guaranteed Pension Plan to incur an "ACCUMULATED FUNDING DEFICIENCY", as
such term is defined in section 302 of ERISA, whether or not such deficiency is
or may be waived; or (c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the Borrower
or any of its Subsidiaries pursuant to section 302(f) or section 4068 of ERISA;
or (d) amend any Guaranteed Pension Plan in circumstances requiring the posting
of security pursuant to section 307 of ERISA or section 401(a)(29) of the Code;
or (e) permit or take any action which would result in
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the aggregate benefit liabilities (with the meaning of section 4001 of ERISA) of
all Guaranteed Pension Plans exceeding the value of the aggregate assets of such
Plans, disregarding for this purpose the benefit liabilities and assets of any
such Plan with assets in excess of benefit liabilities.
SECTION 6.6. MERGER AND CONSOLIDATION; ACQUISITIONS. The Borrower will
not, and will not permit any of its Subsidiaries to, merge or consolidate with
any other Person; enter into any stock or asset acquisitions (other than the
acquisition of assets in the ordinary course of such Person's business and other
than the acquisition of stock permitted under section 6.3(j) or section 6.3(l)
hereof), enter into any joint venture or partnerships (except to the extent
permitted under section 6.3 hereof); or enter into any new lines of business or
otherwise change the conduct of the Borrower's or such Subsidiary's business as
presently conducted other than (a) the merger or consolidation of one or more
Subsidiaries of the Borrower with and into the Borrower, PROVIDED that the
Borrower is the surviving entity, (b) the merger or consolidation of two or more
Subsidiaries of the Borrower, PROVIDED that, if one of the Subsidiaries is a
Guarantor, that the Guarantor is the surviving entity, or (c) the acquisition
(whether of stock or assets or by means of a merger) of a more than fifty
percent (50%) equity interest in any other Person, PROVIDED that (i) immediately
after such acquisition, and after giving effect thereto on a PRO FORMA basis, no
Default or Event of Default shall then exist, (ii) if required by applicable
law, the board of directors and the shareholders or the equivalent, of such
other Person has approved such acquisition, (iii) such other Person is in the
business of selling office services, products and/or supplies, and (iv) if the
Borrower or a Guarantor and such other Person merge, the Borrower or such
Guarantor is the surviving entity.
SECTION 6.7. DISPOSITION OF ASSETS AND SALE-LEASEBACK TRANSACTIONS. The
Borrower will not, and will not permit any of its Subsidiaries to, dispose of or
sell assets other than:
(a) the disposition of assets in the ordinary course of business;
(b) sale-leaseback transactions and other dispositions of assets
that do not have a materially adverse effect on the business, assets or
financial condition of the Borrower or any of its Subsidiaries, PROVIDED that
(i) the aggregate net book value of the assets to be sold PLUS the net book
value of all other assets of the Borrower and its Subsidiaries sold under this
clause (b) during the period of time from the Closing Date through the date of
such sale does not, at the time of such sale, exceed 25% of the Consolidated
Total Assets of the Borrower and its Subsidiaries and (ii) such assets are sold
in an arm's length transaction for fair market value (after giving effect to all
tax benefits, if any, associated with such sale); and
(c) the sale of accounts receivable of the Borrower and/or its
Subsidiaries pursuant to the Securitization.
SECTION 6.8. SUBORDINATED DEBT. The Borrower will not effect or permit
any change in or amendment to any document or instrument pertaining to the
subordination,
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covenants, events of default, terms of payment or required prepayments of any
Subordinated Debt, give any notice of redemption or prepayment or offer to
repurchase under any such document or instrument or, directly or indirectly,
make any payment of principal of or interest on or in redemption, retirement or
repurchase of any Subordinated Debt, except that (a) the Borrower may make
regularly scheduled payments when required by the terms of the Subordinated
Debt, and (b) the Borrower may refinance all or a portion of the Subordinated
Debt so long as such refinancing Subordinated Debt (i) has a maturity that is no
earlier than the Subordinated Debt being refinanced and (ii) is subordinated to
the Obligations on terms at least as favorable to the Agent and the Lenders, in
the opinion of the Agent and the Required Lenders, as the Subordinated Debt
being refinanced.
SECTION 7. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as the Term Loan or any
other Obligation is outstanding:
SECTION 7.1. FIXED CHARGE COVERAGE RATIO. As at the end of each fiscal
quarter of the Borrower, the Borrower will not permit the ratio (the "FIXED
CHARGE COVERAGE RATIO") of (a) the sum of (i) Consolidated EBIT for the period
of the four consecutive fiscal quarters (the "MEASUREMENT PERIOD") ending on
such date PLUS (ii) the Rental Expense for such Measurement Period, to (b) the
sum of (i) the Consolidated Total Interest Expense for such Measurement Period
PLUS (ii) the Rental Expense for such Measurement Period, to be less than 1.50
to 1.
SECTION 7.2. ADJUSTED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO. As at
the end of each fiscal quarter of the Borrower, the Borrower will not permit the
ratio of (a) Consolidated Adjusted Funded Debt as at such date to (b) the sum of
(i) Consolidated Adjusted Funded Debt as at such date PLUS (ii) Stockholders'
Equity as of such date, to be greater than 0.75 to 1.
SECTION 8. CONDITIONS PRECEDENT.
SECTION 8.1. CLOSING CONDITIONS. Subject to the conditions set forth in
section 8.2 hereof, the obligations of the Lenders to advance the Term Loan
shall be subject to the satisfaction of the following conditions precedent on or
prior to the Closing Date:
SECTION 8.1.1. LOAN DOCUMENTS. Each of the Loan Documents shall have
been duly executed and delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance satisfactory to each of
the Lenders. The Agent shall have received a fully executed copy of each such
document.
SECTION 8.1.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. The Agent
shall have received from the Borrower and each of the Guarantors a copy,
certified by a duly authorized officer of such Person to be true and complete on
the Closing Date, of each of (a) its charter or other incorporation documents
(or the equivalent constitutive
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documents) as in effect on such date of certification, and (b) its by-laws or
the equivalent constitutive documents as in effect on such date.
SECTION 8.1.3. CORPORATE ACTION. All corporate (or other) action
necessary for the valid execution, delivery and performance by the Borrower and
each of the Guarantors of this Credit Agreement and the other Loan Documents to
which it is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Lenders shall have been provided to the
Agent.
SECTION 8.1.4. INCUMBENCY CERTIFICATE. The Agent shall have received
from the Borrower and each of the Guarantors an incumbency certificate, dated as
of the Closing Date, signed by a duly authorized officer of the Borrower and
each Guarantor, as applicable, and giving the name and bearing a specimen
signature of each individual who shall be authorized: (a) to sign, in the name
and to the benefit of each of the Borrower and the Guarantors, each of the Loan
Documents; (b) with respect to the Borrower, to make Conversion Requests, and
(c) to give notices and to take other action on its behalf under the Loan
Documents.
SECTION 8.1.5. OPINION OF COUNSEL. The Agent shall have received
favorable legal opinions addressed to the Lenders and the Agent, dated as of the
Closing Date, in form and substance satisfactory to the Lenders and the Agent,
from (a) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., general counsel to the Borrower and the
Guarantors and (b) ▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and the
Guarantors.
SECTION 8.1.6. PAYMENT OF FEES. The Borrower shall have paid to the
Agent and the Arranger, as appropriate, the Agent Fees, the Closing Fee and all
other fees and expenses (including without limitation all reasonable legal fees
and disbursements of the Agent's Special Counsel) required to be paid by it on
or prior to the Closing Date.
SECTION 8.1.7. COMPLIANCE CERTIFICATE. The Borrower shall have
delivered to the Lenders a Compliance Certificate, dated as of the Closing Date,
and based on the financial statements of the Borrower for the fiscal quarter
ended in August 3, 2002.
SECTION 8.1.8. UCC SEARCH RESULTS. The Agent shall have received the
results of UCC searches (and the equivalent thereof in all applicable foreign
jurisdictions), indicating no Liens other than Permitted Liens and otherwise in
form and substance satisfactory to the Agent.
SECTION 8.1.9. CERTIFICATE OF INSURANCE. The Agent shall have
received a certificate of insurance from an independent insurance broker dated
as of the Closing Date, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance of the Borrower
and its Subsidiaries.
SECTION 8.1.10. NO MATERIAL ADVERSE CHANGE. The Agent shall be
satisfied that there shall have occurred no material adverse change in the
business, operations, assets, properties or condition of the Borrower or its
Subsidiaries, since the Balance Sheet Date.
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SECTION 8.1.11. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of
the representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of the Term Loan, with the same effect as if
made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this 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, and to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
SECTION 8.1.12. NO LEGAL IMPEDIMENT. No change shall have occurred
in any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Lender would make it illegal for such Lender to make
the Term Loan.
SECTION 8.1.13. GOVERNMENTAL REGULATION. Each Lender shall have
received such statements in substance and form reasonably satisfactory to such
Lender as such Lender shall require for the purpose of compliance with any
applicable regulations of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.
SECTION 8.1.14. PROCEEDINGS AND DOCUMENTS. All proceedings in
connection with the transactions contemplated by this Credit Agreement, the
other Loan Documents and all other documents incident thereto shall be
reasonably satisfactory in substance and in form to the Lenders and to the Agent
and the Agent's Special Counsel, and the Lenders, the Agent and such counsel
shall have received all information and such counterpart originals or certified
or other copies of such documents as the Agent may reasonably request.
SECTION 8.2. CONDITIONS TO FUNDING. The obligations of the Lenders to
advance the Term Loan shall also be subject to the satisfaction of the following
conditions precedent on or prior to the Initial Drawdown Date:
SECTION 8.2.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of
the representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of the Term Loan, with the same effect as if
made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this 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, and to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
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SECTION 8.2.2. NO LEGAL IMPEDIMENT. No change shall have occurred in
any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Lender would make it illegal for such Lender to make
the Term Loan.
SECTION 8.2.3. EUROPEAN COMMISSION APPROVAL. The European Commission
shall have granted all necessary approvals (the "EC Approvals") with respect to
the ▇▇▇▇▇▇▇▇ Acquisition substantially in accordance with the terms of the
Purchase Agreement. The Borrower shall have delivered to the Agent satisfactory
evidence thereof, certified as true and correct by a duly authorized officer of
the Borrower.
SECTION 8.2.4. COMPLIANCE CERTIFICATE. The Borrower shall have
delivered to the Lenders a Compliance Certificate, dated as of the Initial
Drawdown Date, and based on financial statements prepared on a PRO FORMA basis
which include the Obligations and any other financing arrangements made by the
Borrower in connection with the ▇▇▇▇▇▇▇▇ Acquisition and all interest, fees and
expenses related thereto.
SECTION 8.2.5. DEADLINE FOR INITIAL DRAWDOWN. The Borrower shall
have (i) satisfied the conditions precedent set forth in this section 8.2 and
(ii) requested that the Lenders advance the Term Loan on or before the earlier
of (x) fifteen (15) days after receiving the EC Approvals in accordance with
section 8.2.3 or (y) December 31, 2002; and provided further that the ▇▇▇▇▇▇▇▇
Acquisition shall occur no later than December 31, 2002.
SECTION 9. EVENTS OF DEFAULT; ACCELERATION; ETC.
SECTION 9.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "DEFAULTS") shall
occur and be continuing:
(a) the Borrower shall fail to pay any principal of the Term Loan
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower or any Guarantor shall fail to pay any interest on
the Term Loan, the Agent Fees, other fees or other sums due hereunder or under
any of the other Loan Documents, within five (5) Business Days of the date when
the same shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower (i) shall fail to comply with any of its covenants
contained in sections 5.4, 5.5, 5.10, 6 or 7 hereof, or (ii) shall fail to
comply with its covenant contained in section 5.6 hereof and such failure shall
continue for thirty (30) days;
(d) the Borrower or any of its Subsidiaries shall fail to perform
any term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this section 9.1) for thirty
(30) days after written notice of such failure has been given to the Borrower by
the Agent;
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(e) any material representation or warranty of the Borrower or any
of its Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for borrowed
money or credit received or in respect of any Capitalized Leases or any
obligations with respect to interest rate protection arrangements or exchange
rate protection arrangements which, in the aggregate, represents Indebtedness
(calculated, with respect to interest rate protection arrangements and exchange
rate protection arrangements based on the notional principal amount thereof) of
$25,000,000 or more, or fail to observe or perform any material term, covenant
or agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money or credit received or in respect of any Capitalized
Leases or evidencing any interest rate protection arrangement or exchange rate
protection arrangement which in the aggregate represents Indebtedness
(calculated, with respect to interest rate protection arrangements and exchange
rate protection arrangements based on the notional principal amount thereof) of
$25,000,000 or more, and for such period of time as would permit (assuming the
giving of appropriate notice if required) the holder or holders thereof or of
any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall petition
or apply for the appointment of a trustee or other custodian, liquidator or
receiver of the Borrower or any of its Subsidiaries or of any substantial part
of the assets of the Borrower or any of its Subsidiaries or shall commence any
case or other proceeding relating to the Borrower or any of its Subsidiaries
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in furtherance of
any of the foregoing, or if any such petition or application shall be filed or
any such case or other proceeding shall be commenced against the Borrower or any
of its Subsidiaries and shall not have been dismissed within sixty (60) days, or
the Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of its
Subsidiaries bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower or any Subsidiary of the Borrower in an involuntary case under federal
bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, whether or not consecutive, any final
judgment
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against the Borrower or any of its Subsidiaries that, with other outstanding
final judgments, undischarged, against the Borrower or any of its Subsidiaries
exceeds in the aggregate $10,000,000;
(j) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event, or a failure to make a required installment or other payment (within the
meaning of section 302(f)(1) of ERISA), shall have occurred and the Required
Lenders shall have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of the Borrower or any of
its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate
amount exceeding $10,000,000 and such event in the circumstances occurring
reasonably could constitute grounds for the termination of such Guaranteed
Pension Plan by the PBGC, for the appointment by the appropriate United States
District Court of a trustee to administer such Guaranteed Pension Plan or for
the imposition of a Lien in favor of such Guaranteed Pension Plan; or a trustee
shall have been appointed by the United States District Court to administer such
Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed
Pension Plan;
(k) the holders of all or any part of the Subordinated Debt shall
accelerate the maturity of all or any part of the Subordinated Debt or the
Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part,
or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in
part shall have been made, in each case in violation of the provisions of this
Credit Agreement;
(l) if any of the Loan Documents shall be canceled, terminated,
revoked or rescinded, in each case otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Lenders, or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto or any of their
respective stockholders, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination that,
or issue a judgment, order, decree or ruling to the effect that, any one or more
of the Loan Documents is illegal, invalid or unenforceable in accordance with
the terms thereof; or
(m) a "CHANGE IN CONTROL" shall have occurred (which for the
purposes of this subsection (m) shall mean the occurrence of any of the
following events):
(i) the acquisition by any Person (including any syndicate or
group deemed to be a "PERSON" under Section 13(d)(3) of the Securities and
Exchange Act of 1934, as amended) of beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of Capital Stock of the Borrower entitling
such Person to exercise 50% or more of the total voting power of all shares of
Capital Stock of the Borrower entitled to vote generally in the elections of
directors (any shares of voting stock of which such person or group is the
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beneficial owner that are not then outstanding being deemed outstanding for
purposes of calculating such percentage);
(ii) any consolidation of the Borrower with, or merger of the
Borrower into, any other Person, any merger of another Person into the Borrower,
or any sale or transfer of all or substantially all of the assets of the
Borrower to another Person (other than a transfer of assets to one or more
Guarantors or a merger (A) which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Capital Stock of
the Borrower or (B) which is effected solely to change the jurisdiction of
incorporation of the Borrower); or
(iii) during any consecutive two-year period, individuals who
at the beginning of such period constituted the Board of Directors of the
Borrower (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the Borrower
was approved by a vote of 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office;
(n) any of (i) the Borrower or any of its Subsidiaries shall fail to
make any payment under the Securitization when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise), and any such failure shall continue after the applicable grace
period, if any, specified in the documents relating to the Securitization, or
(ii) the "TERMINATION DATE" (under and as defined in the Receivables Purchase
Agreement, dated as of October 27, 2000, among the Borrower, Lincolnshire
Funding, LLC, Corporate Receivables Corporation, the financial institutions from
time to time party thereto as Purchasers, and Citicorp North America, Inc., as
Agent or any replacement agreement therefor entered into as permitted by this
Credit Agreement) shall have been declared to have occurred pursuant to Section
7.01 of such Receivables Purchase Agreement or any replacement agreement
therefor entered into as permitted by this Credit Agreement, or (iii) any "EVENT
OF TERMINATION" (under and as defined in any of the documents relating to the
Securitization or any replacement agreement therefor entered into as permitted
by the Credit Agreement) shall occur and continue after the applicable grace
period, if any, specified in such documents if either, pursuant to such
documents, (A) the existence of such Event of Termination would cause the
Termination Date to occur or (B) the existence of such Event of Termination
would permit the Purchaser under such documents to declare the Termination Date
to have occurred and such Event of Termination continues unremedied or unwaived
for a period of more than ninety (90) days after the date that the Agent gives
notice to the Borrower of such Event of Termination; or
(q) the Borrower and its Subsidiaries at any time shall not be in
compliance with the Obligor Group Requirement and such failure continues for
twenty (20) days
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following the date on which a Compliance Certificate is to be delivered by the
Borrower pursuant to section 6.4(c) hereof;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Required Lenders shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement and
the other Loan Documents, and they shall thereupon forthwith become, immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; PROVIDED that in
the event of any Event of Default specified in section 9.1(g) or 9.1(h) hereof,
all such amounts shall become immediately due and payable automatically and
without any requirement of notice from the Agent or any Lender.
SECTION 9.2. REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Term Loan pursuant to section 9.1 hereof, each
Lender, if owed any amount with respect to the Term Loan and upon the consent of
the Majority Lenders, may proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit Agreement and
the other Loan Documents or any instrument pursuant to which the Obligations to
such Lender are evidenced, including as permitted by applicable law the
obtaining of the EX PARTE appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of such Lender. No remedy herein
conferred upon any Lender or the Agent or the holder of any Term Note is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or any other provision
of law.
SECTION 10. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Lenders to the Borrower and any securities or other property of the Borrower
in the possession of such Lender may be applied to or set off by such Lender
against the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees
with each other Lender that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Lender, other than Indebtedness evidenced
by the Term Notes held by such Lender, such amount shall be applied ratably to
such other Indebtedness (except that no amounts shall be applied to documentary
letters of credit) and to the Indebtedness evidenced by all such Term Notes held
by such Lender, and (b) if such Lender shall receive from the Borrower, whether
by voluntary payment, exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the Term Notes held by such Lender
by proceedings against the Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply
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to the payment of the Term Notes held by such Lender any amount in excess of its
ratable portion of the payments received by all of the Lenders with respect to
the Term Notes held by, all of the Lenders, such Lender will make such
disposition and arrangements with the other Lenders with respect to such excess,
either by way of distribution, PRO TANTO assignment of claims, subrogation or
otherwise as shall result in each Lender receiving in respect of the Term Notes
held by it, its proportionate payment as contemplated by this Credit Agreement;
PROVIDED that if all or any part of such excess payment is thereafter recovered
from such Lender, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.
SECTION 11. THE AGENT.
SECTION 11.1. AUTHORIZATION.
(a) The Agent is authorized to take such action on behalf of each of the
Lenders and to exercise all such powers as are hereunder and under any of the
other Loan Documents and any related documents delegated to the Agent, together
with such powers as are reasonably incident thereto, PROVIDED that no duties or
responsibilities not expressly assumed herein or therein shall be implied to
have been assumed by the Agent.
(b) The relationship between the Agent and the Lenders is and shall be
that of an independent contractor. The use of the term "AGENT" herein is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the Lenders.
Nothing contained in this Credit Agreement or any of the other Loan Documents
shall be construed to create an agency, trust or other fiduciary relationship
between the Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to exercise
certain rights and perform certain duties and responsibilities hereunder and
under the other Loan Documents, the Agent is nevertheless a "REPRESENTATIVE" of
the Lenders, as that term is defined in Article 1 of the Uniform Commercial
Code, for purposes of actions for the benefit of the Lenders with respect to all
collateral security and guaranties contemplated by the Loan Documents. Such
actions include the designation of the Agent as "SECURED PARTY", "MORTGAGEE",
"LIENHOLDER" or the like on all financing statements, motor vehicle titles and
other documents and instruments, whether recorded or otherwise, relating to the
attachment, perfection, priority or enforcement of any security interests,
mortgages, liens or deeds of trust in collateral security intended to secure the
payment or performance of any of the Obligations, all for the benefit of the
Lenders and the Agent.
SECTION 11.2. EMPLOYEES AND AGENTS. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. The
Agent may utilize the services of
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such Persons as the Agent in its sole discretion may reasonably determine, and
all reasonable fees and expenses of any such Persons shall be paid by the
Borrower.
SECTION 11.3. NO LIABILITY. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable to the
Lenders for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Agent or such other Person, as the case may be, may be liable for
losses due to its willful misconduct or gross negligence.
SECTION 11.4. NO REPRESENTATIONS.
SECTION 11.4.1. GENERAL. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, any of the
other Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Term Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Term Notes, or for any recitals or
statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower or any of its Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for the Term Notes
or to inspect any of the properties, books or records of the Borrower or any of
its Subsidiaries. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower or any holder of any
of the Term Notes shall have been duly authorized or is true, accurate and
complete. The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Lenders,
with respect to the creditworthiness or financial conditions of the Borrower or
any of its Subsidiaries. Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement.
SECTION 11.4.2. CLOSING DOCUMENTATION, ETC. For purposes of
determining compliance with the conditions set forth in section 8, each Lender
that has executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter either
sent, or made available, by the Agent or the Arranger to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender, unless
an officer of the Agent or the Arranger active upon the Borrower's account shall
have received notice from such Lender prior to the Closing Date specifying such
Lender's objection thereto and such objection shall not have been withdrawn by
notice to the Agent or the Arranger to such effect on or prior to the Closing
Date.
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SECTION 11.5. PAYMENTS.
SECTION 11.5.1. PAYMENTS TO AGENT. A payment by the Borrower to the
Agent hereunder or any of the other Loan Documents for the account of any Lender
shall constitute a payment to such Lender. The Agent agrees promptly to
distribute to each Lender such Lender's PRO RATA share of payments received by
the Agent for the account of the Lenders except as otherwise expressly provided
herein or in any of the other Loan Documents.
SECTION 11.5.2. DISTRIBUTION BY AGENT. If in the opinion of the
Agent the distribution of any amount received by it in such capacity hereunder,
under the Term Notes or under any of the other Loan Documents might involve it
in liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent jurisdiction.
If a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
SECTION 11.5.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan Documents,
any Lender that fails to comply with the provisions of section 10 hereof with
respect to making dispositions and arrangements with the other Lenders, where
such Lender's share of any payment received, whether by setoff or otherwise, is
in excess of its PRO RATA share of such payments due and payable to all of the
Lenders, in each case as, when and to the full extent required by the provisions
of this Credit Agreement, shall be deemed delinquent (a "DELINQUENT LENDER") and
shall be deemed a Delinquent Lender until such time as such delinquency is
satisfied. A Delinquent Lender shall be deemed to have assigned any and all
payments due to it from the Borrower, whether on account of the outstanding
principal, interest, fees or otherwise, to the remaining nondelinquent Lenders
for application to, and reduction of, their respective PRO RATA shares of the
outstanding Obligations. The Delinquent Lender hereby authorizes the Agent to
distribute such payments to the nondelinquent Lenders in proportion to their
respective PRO RATA shares of the outstanding Obligations. A Delinquent Lender
shall be deemed to have satisfied in full a delinquency when and if, as a result
of application of the assigned payments to the outstanding Obligations of the
nondelinquent Lenders, the Lenders' respective PRO RATA shares of the
outstanding Obligations have returned to those in effect immediately prior to
such delinquency and without giving effect to the nonpayment causing such
delinquency.
SECTION 11.6. HOLDERS OF TERM NOTES. The Agent may deem and treat the
payee of any Term Note as the absolute owner or purchaser thereof for all
purposes hereof until it shall have been furnished in writing with a different
name by such payee or by a subsequent holder, assignee or transferee.
SECTION 11.7. INDEMNITY. The Lenders ratably agree hereby to indemnify
and hold harmless the Agent from and against any and all claims, actions and
suits (whether
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groundless or otherwise), losses, damages, costs, expenses (including any
expenses for which the Agent has not been reimbursed by the Borrower as required
by section 13 hereof), and liabilities of every nature and character arising out
of or related to this Credit Agreement or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Agent's actions
taken hereunder or thereunder, except to the extent that any of the same shall
be directly caused by the Agent's willful misconduct or gross negligence.
SECTION 11.8. AGENT AS LENDER; ETC. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Term Loan Amount, and as the holder of any of the Term Notes, as
it would have were it not also the Agent.
SECTION 11.9. RESIGNATION. The Agent may resign at any time by giving
sixty (60) days' prior written notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Agent. Unless a Default or Event of Default shall have occurred and
be continuing, such successor Agent shall be reasonably acceptable to the
Borrower. If no successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent reasonably acceptable
to the Borrower, which shall be a financial institution having a rating of not
less than A or its equivalent by S&P. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resignation, the
provisions of this Credit Agreement and the other Loan Documents shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Agent.
SECTION 11.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each
Lender hereby agrees that, upon learning of the existence of a Default or an
Event of Default, it shall promptly notify the Agent thereof. The Agent hereby
agrees that upon receipt of any notice under this section 11.10 it shall
promptly notify the other Lenders and the Borrower of the existence of such
Default or Event of Default.
SECTION 12. EXPENSES.
The Borrower agrees to pay (a) the Agent's reasonable costs of producing
and reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Lenders (other than taxes based upon the Agent's or any Lender's net income or
taxes not payable by the Borrower pursuant to the provisions of this Credit
Agreement) on the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify the Agent and each Lender with respect
thereto), (c) the reasonable fees, expenses and disbursements of the Agent's
Special Counsel or any local counsel to the Agent incurred in connection
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with the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) the
reasonable fees, expenses and disbursements of the Agent incurred by the Agent
in connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all insurance
premiums and surveyor, engineering and appraisal charges, (e) all reasonable
out-of-pocket expenses (including, without limitation, reasonable attorneys'
fees (including the allocated costs of in-house counsel) and costs and
reasonable accounting, appraisal, investment banking and similar professional
fees and charges) incurred by the Agent or any Lender in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower or any of its Subsidiaries or the administration thereof after the
occurrence of an Event of Default and (ii) any other litigation, proceeding or
dispute whether arising hereunder or otherwise, in any way related to any
Lender's or the Agent's relationship with the Borrower or any of its
Subsidiaries (other than any litigation, proceeding or dispute referred to in
section 13 hereof) but only if such Lender or the Agent is the prevailing party
in such litigation, proceeding or dispute, and (f) all reasonable fees, expenses
and disbursements of the Agent incurred in connection with UCC searches. The
Borrower shall not pay the fees, expenses and disbursements incurred by any
Lender other than the Agent in connection with the review and preparation of
this Credit Agreement, the other Loan Documents and the other agreements and
instruments mentioned herein. The covenants of this section 12 shall survive
payment or satisfaction of all other Obligations.
SECTION 13. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent, the
Arranger, the Lenders and their respective affiliates, officers, directors and
employees from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (a) any actual or proposed use by the
Borrower or any of its Subsidiaries of the proceeds of the Term Loan, (b) the
Borrower or any of its Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (c) with respect to the Borrower
and its Subsidiaries and their respective properties and assets, the violation
of any Environmental Law, the presence, disposal, escape, seepage, leakage,
spillage, discharge, emission, release or threatened release of any Hazardous
Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding, but excluding liabilities, losses, damages or
expenses which are determined by a court of competent jurisdiction by final
order to result from the gross negligence or willful misconduct of the Person
seeking indemnification hereunder. In litigation, or the preparation therefor,
the Lenders, the
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Arranger and the Agent shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrower agrees to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that the
obligations of the Borrower under this section 13 are unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The covenants contained in this section 13 shall survive payment
or satisfaction in full of all other Obligations.
SECTION 14. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Term Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Lenders and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Lenders of the Term Loan, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Credit Agreement or the Term Notes or the other Loan Documents
remains outstanding, and for such further time as may be otherwise expressly
specified in this Credit Agreement. All statements contained in any certificate
or other paper delivered to any Lender or the Agent at any time by or on behalf
of the Borrower or any of its Subsidiaries pursuant hereto or in connection with
the transactions contemplated hereby shall constitute representations and
warranties by the Borrower or such Subsidiary hereunder.
SECTION 15. ASSIGNMENT AND PARTICIPATION.
SECTION 15.1. CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Term Loan Amount at the time owing to it and
the Term Notes held by it); PROVIDED that (a) except in the case of an
assignment by a Lender to (i) the financial institution acquiring such Lender in
conjunction with the sale or merger of such Lender or (ii) any member of the
Approved Lending Group, each of the Agent and, so long as no Default or Event of
Default has occurred and is continuing, the Borrower, shall have given its prior
written consent to such assignment, which consent, in each case, will not be
unreasonably withheld, (b) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Lender's rights and obligations under
this Credit Agreement, (c) each assignment shall be in an amount that is a
minimum of $5,000,000 or an integral multiple of $500,000 in excess thereof,
unless such assignment is to a Lender or a Lender Affiliate of the assigning
Lender, in which case there shall be no such minimum amount, or is an assignment
of the entire remaining amount of the assigning Lender's Term Loan Amount owing
to it, and (d) the parties to such assignment shall execute and deliver to the
Agent, for recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of EXHIBIT E attached hereto (an
"ASSIGNMENT AND ACCEPTANCE"), together with any Term Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee
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thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (y) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Agent of the registration fee referred to in
section 15.3 hereof, be released from its obligations under this Credit
Agreement.
SECTION 15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS;
COVENANTS. By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage; (b) the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower and its
Subsidiaries or any other Person primarily or secondarily liable in respect of
any of the Obligations, or the performance or observance by the Borrower and its
Subsidiaries or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Credit Agreement
or any of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (c) such assignee confirms that it has received a
copy of this Credit Agreement, together with copies of the most recent financial
statements referred to in sections 4.4 and 5.4 hereof and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d) such assignee will,
independently and without reliance upon the assigning Lender, the Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Credit Agreement; (e) such assignee represents and
warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Credit Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Credit Agreement are required to be performed by it as a Lender; and (h)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance.
SECTION 15.3. REGISTER. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Term Loan Percentages, and the Term Loan Amounts owing to the Lenders from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the
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Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Credit Agreement. The
Register shall be available for inspection by the Borrower and the Lenders at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, other than with respect to assignments by any Lender to
(a) any Lender Affiliate of such Lender, (b) any of the twelve (12) Federal
Reserve Banks as provided in section 15.7 hereof or (c) any other Lender
hereunder, the assigning Lender agrees to pay to the Agent a registration fee in
the sum of $3,500.
SECTION 15.4. NEW TERM NOTES. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with each Term
Note subject to such assignment, the Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrower, at its own expense,
shall execute and deliver to the Agent, in exchange for each surrendered Term
Note, a new Term Note to the order of such Eligible Assignee in an amount equal
to the amount assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Term Note to the order of the assigning Lender in
an amount equal to the amount retained by it hereunder. Such new Term Notes
shall provide that they are replacements for the surrendered Term Notes, shall
be in an aggregate principal amount equal to the aggregate principal amount of
the surrendered Term Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be substantially the form of the assigned
Term Notes. The surrendered Term Notes shall be canceled and returned to the
Borrower.
SECTION 15.5. PARTICIPATIONS. Each Lender may sell participations to one
or more banks or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (a) each such participation shall be in an amount of not less than
$5,000,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrower and (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would (i) reduce
the principal of or the interest rate on the Term Loan, (ii) extend the term or
increase the Term Loan Amount of such Lender as it relates to such participant,
(iv) extend any regularly scheduled payment date for principal or interest or
(v) release any collateral for the Obligations.
SECTION 15.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If
any assignee Lender is an Affiliate of the Borrower, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Agent pursuant to section
9.1 hereof, and the determination of the Required Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without
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regard to such assignee Lender's interest in the Term Loan. If any Lender sells
a participating interest in the Term Loan to a participant, and such participant
is the Borrower or an Affiliate of the Borrower, then such transferor Lender
shall promptly notify the Agent of the sale of such participation. A transferor
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or modifications to any of the Loan Documents
or for purposes of making requests to the Agent pursuant to section 9.1 hereof
to the extent that such participation is beneficially owned by the Borrower or
any Affiliate of the Borrower, and the determination of the Required Lenders
shall for all purposes of this Credit Agreement and the other Loan Documents be
made without regard to the interest of such transferor Lender in the Term Loan
to the extent of such participation.
SECTION 15.7. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender
shall retain its rights to be indemnified pursuant to section 13 hereof with
respect to any claims or actions arising prior to the date of such assignment.
If any assignee Lender is not incorporated under the laws of the United States
of America or any state thereof, it shall, prior to the date on which it becomes
a Lender hereunder, deliver to the Borrower and the Agent certification as to
its exemption from deduction or withholding of any United States federal income
taxes. Anything contained in this section 15 to the contrary notwithstanding,
any Lender may at any time pledge all or any portion of its interest and rights
under this Credit Agreement (including all or any portion of its Term Notes) to
any of the twelve Federal Reserve Banks organized under section 4 of the Federal
Reserve Act, 12 U.S.C. section 341, may at any time assign all or any portion of
its interest and rights under this Credit Agreement (including all or any
portion of its Term Notes) to any Lender Affiliate of such Lender (provided that
such assignment to such Affiliate does not impose any additional tax liabilities
on the Borrower) and with respect to any Lender that is a Fund, to any Lender or
any trustee for, or any other representative of, holders of obligations owed or
securities issued by such Fund as security for such obligations or securities or
any institutional custodian for such Fund or for such Lender, in each case
without payment to the Agent of the registration fee as provided in section 15.3
hereof. No such pledge or assignment or the enforcement thereof shall release
the pledgor or assignor Lender from its obligations hereunder or under any of
the other Loan Documents, provide any voting rights hereunder to the secured
party thereof, substitute any such secured party for such Lender as a party
hereto or affect any rights or obligations of the Borrower or Agent hereunder.
SECTION 15.8. ASSIGNMENT BY BORROWER. The Borrower shall not assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Lenders.
SECTION 16. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required by this Credit Agreement or
the Term Notes shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph,
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telecopy, facsimile or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or at such other address for notice as the
Borrower shall last have furnished in writing to the Person giving the notice,
with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Senior Vice President and General
Counsel, Staples, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇. Alto, Director, or such other address for
notice as the Agent shall last have furnished in writing to the Person giving
the notice; and
(c) if to any Lender, at such Lender's address set forth on SCHEDULE
1 hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer and (ii) if sent by registered or
certified first-class mail return receipt requested, postage prepaid, on the
third Business Day following the mailing thereof.
SECTION 17. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR
ANY FEDERAL COURT SITTING IN SUCH STATE AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 16 HEREOF. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
SECTION 18. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
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SECTION 19. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought. Delivery by facsimile by any of the
parties hereto of an executed counterpart hereof or of any amendment or waiver
hereto shall be as effective as an original executed counterpart hereof or of
such amendment or waiver and shall be considered a representation that an
original executed counterpart hereof or such amendment or waiver, as the case
may be, will be delivered.
SECTION 20. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in section 22 hereof.
SECTION 21. WAIVER OF JURY TRIAL.
The Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement or any of the other Loan Documents, any rights or obligations
hereunder or thereunder or the performance of which rights and obligations.
Except as prohibited by law, the Borrower hereby waives any right it may have to
claim or recover in any litigation referred to in the preceding sentence any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages. The Borrower (a) certifies that no
representative, agent or attorney of any Lender or the Agent has represented,
expressly or otherwise, that such Lender or the Agent would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges that the
Agent and the Lenders have been induced to enter into this Credit Agreement, the
other Loan Documents to which it is a party by, among other things, the waivers
and certifications contained herein.
SECTION 22. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement to
be given by the Lenders may be given, and any term of this Credit Agreement, the
other Loan Documents or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the Borrower or any of its
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrower and
the written consent of the Required Lenders. Notwithstanding the foregoing, the
rate of interest on the Term Notes may not
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be reduced or forgiven, the term of the Term Notes may not be extended, and the
regularly scheduled payment date for principal or interest on the Term Notes may
not be postponed or extended, in each case without the written consent of the
Borrower and the written consent of each Lender directly affected thereby; the
principal amount of the Term Loan may not be forgiven without the written
consent of each Lender directly affected thereby; this section 22 may not be
changed without the written consent of the Borrower and the written consent of
all of the Lenders; the definition of Required Lenders may not be amended
without the written consent of all of the Lenders; the Agent may not release any
guaranty for the Obligations (except as provided in section 3.13 hereof) without
the written consent of all the Lenders; the amount of the Agent Fees payable for
the account of the Agent, and section 11 hereof may not be amended without the
written consent of the Agent. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
SECTION 23. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SECTION 23.1. CONFIDENTIALITY. Each of the Lenders and the Agent agrees,
on behalf of itself and each of its affiliates, directors, officers, employees
and representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
Confidential Information supplied to it by the Borrower or any of its
Subsidiaries pursuant to this Credit Agreement, PROVIDED that nothing herein
shall limit the disclosure of any such information (a) after such information
shall have become public other than through a violation of this section 23 or
becomes available to any of the Lenders or the Agent on a nonconfidential basis
from a source other than the Borrower or any of its Subsidiaries, (b) to the
extent required by statute, rule, regulation or judicial process, (c) to counsel
for any of the Lenders or the Agent, (d) to bank examiners, any other regulatory
authority having jurisdiction over any Lender or the Agent (to the extent
required by such Lender by law or subpoena, but only to the extent permitted by
applicable laws and regulations, including those applying to classified
materials), or to auditors or accountants (provided such auditor or accountant
has agreed to be bound by this section 23), (e) to the Agent, any Lender or, any
Financial Affiliate (provided such Financial Affiliate has agreed in a writing
enforceable by the Borrower to be bound by this section 23), (f) in connection
with any litigation to which any one or more of the Lenders, the Agent or any
Financial Affiliate is a party, or in connection with the enforcement of rights
or remedies hereunder or under any other Loan Document, (g) to a Lender
Affiliate or a Subsidiary or affiliate of any Agent who has agreed in a writing
enforceable by the Borrower to be bound by this section 23, (h) to any assignee
or participant (or prospective assignee or participant) or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under this
Credit Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case
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may be, agrees in a writing enforceable by the Borrower to be bound by the
provisions of this section 23 or (i) with the consent of the Borrower.
SECTION 23.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Agent shall, prior to
disclosure thereof, notify the Borrower of any request for disclosure of any
such non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) or pursuant to legal
process including, without limitation, any disclosure under section 23.1(b), (d)
or (f). In addition to, and without limiting the foregoing, each of the Lenders
and the Agent shall permit the Borrower to intervene in any relevant proceedings
to protect its interests in the non-public information and shall provide
reasonable cooperation to the Borrower, at the Borrower's expense, in seeking to
obtain such protection. Each of the Lenders and the Agent further agrees that if
the Borrower is not successful in precluding the court or other legal body from
requiring the disclosure of the non-public information, such Lender or the
Agent, as the case may be, will furnish only that portion of the non-public
information which it in good faith reasonably considers to be legally required
and, at the request and expense of the Borrower, will exercise all reasonable
efforts to obtain reliable assurances that confidential treatment will be
accorded the non-public information.
SECTION 23.3. OTHER. In no event shall any Lender or the Agent be
obligated or required to return any materials furnished to it or any Financial
Affiliate by the Borrower or any of its Subsidiaries. The obligations of each
Lender under this section 23 shall supersede and replace the obligations of such
Lender under any confidentiality letter in respect of this financing signed and
delivered by such Lender to the Borrower prior to the date hereof and shall be
binding upon any assignee of, or purchaser of any participation in, any interest
in the Term Loan.
SECTION 24. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
STAPLES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sr. VP, Finance & Treasurer
FLEET NATIONAL BANK, individually
and as Agent
By: /s/ ▇▇▇▇▇ ▇. Alto
---------------------------------
Name: ▇▇▇▇▇ ▇. Alto
Title: Director
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
HSBC BANK USA
By: /s/ ▇▇▇▇ Sevewicz
----------------------------------
Name: ▇▇▇▇ Sevewicz
Title: Sr. Vice President
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NA
(Main Office Chicago)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director