EXHIBIT 4.6
AMENDMENT NO. 1
to
5-YEAR REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO 5-YEAR REVOLVING CREDIT AGREEMENT (the
"Amendment") is made as of June 30, 2004 (the "Effective Date"), by and among
UNITED STATIONERS SUPPLY CO. (the "Borrower"), UNITED STATIONERS INC., as a
credit party (the "Parent"), the financial institutions listed on the
signature pages hereof (the "Lenders") and BANK ONE, NA, in its capacity as
administrative agent (the "Agent") under that certain 5-Year Revolving Credit
Agreement dated as of March 21, 2003 by and among the Borrower, the Parent,
the financial institutions party thereto and the Agent (as amended,
supplemented or otherwise modified as of the date hereof, the "Credit
Agreement"). Defined terms used herein and not otherwise defined herein
shall have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Credit Agreement; and
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement on the terms and conditions set forth herein;
WHEREAS, the Borrower, the Agent and the Required Lenders have agreed to
amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto have agreed to the following amendments to the Credit
Agreement:
1. AMENDMENTS TO THE CREDIT AGREEMENT. Effective as of June 30, 2004 (the
"Effective Date") and subject to the satisfaction of the conditions
precedent set forth in SECTION 2 below, the Credit Agreement is hereby
amended as follows:
1.1. The definition of "PERMITTED PRIORITY LIENS" now appearing in
SECTION 1.1 of the Credit Agreement is amended to insert
immediately after the phrase "6.15.6 or 6.15.7" now appearing
therein, the following: "or 6.15.23".
1.2. The definition of "PERMITTED SHARE REPURCHASE AMOUNT" now appearing
in SECTION 1.1 of the Credit Agreement is deleted in its entirety.
1.3. The following new definitions shall be inserted in SECTION 1.1 of
the Credit Agreement in proper alphabetical order:
"PERMITTED CUSTOMER FINANCING GUARANTEE" MEANS ANY GUARANTY OR
REPURCHASE OR RECOURSE OBLIGATIONS OF THE BORROWER, INCURRED IN
THE ORDINARY COURSE OF BUSINESS, IN RESPECT OF INDEBTEDNESS INCURRED
BY A CUSTOMER OF THE BORROWER; PROVIDED THAT THE BORROWER'S
OBLIGATIONS IN RESPECT OF ALL SUCH GUARANTEES AND OTHER RECOURSE
OBLIGATIONS SHALL NOT EXCEED $30,000,000 IN THE AGGREGATE.
"PERMITTED DISTRIBUTION AMOUNT" IS DEFINED IN SECTION 6.10.
1.4. SECTION 6.2 of the Credit Agreement is amended to delete the phrase
"Permitted Share Repurchase Amount" now appearing therein, and to
substitute the following therefor: "Permitted Distribution Amount".
1.5. SECTION 6.10 of the Credit Agreement is amended to delete clause (v)
thereof in its entirety, and to substitute the following therefor:
SO LONG AS NO DEFAULT OR UNMATURED DEFAULT SHALL BE CONTINUING OR
RESULT THEREFROM, THE BORROWER MAKE DISTRIBUTIONS TO THE PARENT AND
THE PARENT MAY REDEEM, REPURCHASE, ACQUIRE OR RETIRE AN AMOUNT OF ITS
CAPITAL STOCK OR WARRANTS OR OPTIONS THEREFOR, OR DECLARE AND PAY
ANY DIVIDEND OR MAKE ANY DISTRIBUTION ON ITS CAPITAL STOCK, IN THE
AGGREGATE, CALCULATED AS OF THE DATE SUCH DISTRIBUTION IS MADE BY
THE BORROWER, UP TO THE SUM OF (1) THE GREATER OF (A) $250,000,000
AND (B) AN AMOUNT EQUAL TO (X) $250,000,000 PLUS (Y) 25% OF
CONSOLIDATED NET INCOME (OR MINUS 25% OF ANY LOSS) IN EACH FISCAL
QUARTER BEGINNING WITH THE FISCAL QUARTER ENDING JUNE 30, 2003,
PLUS (2) THE NET CASH PROCEEDS RECEIVED BY THE PARENT OR THE BORROWER
FROM THE EXERCISE OF STOCK OPTIONS ISSUED TO THE DIRECTORS, OFFICERS
AND EMPLOYEES OF THE PARENT, THE BORROWER OR THE BORROWER'S
SUBSIDIARIES; ALL SUCH PERMITTED AMOUNTS ACTUALLY PAID UNDER THIS
CLAUSE (V) DURING ANY PERIOD BEING THE "PERMITTED DISTRIBUTION
AMOUNT" FOR SUCH PERIOD
1.6. SECTION 6.13.7 of the Credit Agreement is deleted in its entirety,
and the following is substituted therefor:
6.13.7 INVESTMENTS (X) CONSTITUTING CUSTOMER ADVANCES NOT TO
EXCEED $20,000,000 AT ANY ONE TIME OUTSTANDING AND (Y) ARISING AS A
RESULT OF ANY REQUIRED PAYMENT UNDER ANY PERMITTED CUSTOMER
FINANCING GUARANTY.
1.7. SECTION 6.15 of the Credit Agreement is amended (i) by renumbering
SECTION 6.15.23 as SECTION 6.15.24 and (ii) inserting the following
new SECTION 6.15.23 as follows:
6.15.23 LIENS ENCUMBERING CASH DEPOSITS IN AN AMOUNT NOT TO
EXCEED $30,000,000 TO SECURE PERMITTED CUSTOMER FINANCING GUARANTEES.
1.8. SECTION 6.19 of the Credit Agreement is amended (i) by deleting the
"and" immediately prior to CLAUSE (VII) thereof and (ii) inserting
the following new CLAUSE (VIII) at the end thereof:
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, AND (VIII) PERMITTED CUSTOMER FINANCING GUARANTEES.
1.9. SECTION 6.22 of the Credit Agreement is amended to delete the phrase
"Permitted Share Repurchase Amount" now appearing therein, and to
substitute the following therefor: "Permitted Distribution Amount".
2. CONDITIONS OF EFFECTIVENESS. The effectiveness of this Amendment is
subject to the conditions precedent that the Agent shall have received:
(a) duly executed originals of this Amendment from each of the
Borrower and the Required Lenders (or the Agent with the consent
in writing of the Required Lenders);
(b) duly executed originals of a Reaffirmation in the form of
Attachment A attached hereto from each of the Parent and each
of the Borrower's Subsidiaries identified thereon;
(c) the Amendment Fee (as defined below) payable for the account of
each Lender executing this Amendment; and
(d) such other documents, instruments and agreements as the Agent
shall reasonably request.
3. AMENDMENT FEE. Each Lender that delivers a duly executed signature page
to this Amendment to the Agent's counsel, Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, by facsimile (fax: ▇▇▇-▇▇▇-▇▇▇▇) by 5:00
(Chicago time) on June 29, 2004, shall be entitled to an amendment fee
(the "Amendment Fee") equal to $5,000.
4. REPRESENTATIONS AND WARRANTIES AND REAFFIRMATIONS OF THE BORROWER.
4.1. The Borrower hereby represents and warrants that (i) this Amendment
and the Credit Agreement as previously executed and as modified
hereby, and the Reaffirmation attached hereto, constitute legal,
valid and binding obligations of each Credit Party party thereto and
are enforceable against each such Credit Party in accordance with
their terms (except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyances, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and requirements of reasonableness,
good faith and fair dealing), and (ii) no Default or Unmatured
Default has occurred and is continuing.
4.2. Upon the effectiveness of this Amendment and after giving effect
hereto, the Borrower hereby reaffirms all covenants, representations
and warranties, in all material respects, made in the Credit
Agreement as modified hereby, and agrees that all such covenants,
representations and warranties shall be deemed to have been remade
as of the Effective Date, except that any such covenant,
representation, or warranty that was made as of a specific date
shall be considered reaffirmed only as of such date.
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5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
5.1. Upon the effectiveness of SECTION 1 hereof, on and after the date
hereof, each reference in the Credit Agreement (including any
reference therein to "this Credit Agreement," "hereunder," "hereof,"
"herein" or words of like import referring thereto) or in any other
Loan Document shall mean and be a reference to the Credit Agreement
as modified hereby.
5.2. Except as specifically modified above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered
in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
5.3. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent or the
Lenders, nor constitute a waiver of any provision of the Credit
Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. COUNTERPARTS. This Amendment may be executed by one or more of the parties
to this Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
UNITED STATIONERS SUPPLY CO., as the Borrower
By:
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Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO),
individually, as an LC Issuer, and as Agent
By:
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Name:
Title:
PNC BANK N.A.
By:
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Name:
Title:
STANDARD FEDERAL BANK N.A.
By:
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Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
COMERICA BANK
By:
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Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:
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Name:
Title:
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By:
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Name:
Title:
ASSOCIATED BANK, N.A.
By:
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Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1
FIFTH THIRD BANK (CHICAGO), A
MICHIGAN BANKING CORPORATION
By:
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Name:
Title:
FIRST BANK
By:
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Name:
Title:
UNION BANK OF CALIFORNIA
By:
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Name:
Title:
BANK OF SCOTLAND
By:
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Name:
Title:
HIBERNIA NATIONAL BANK
By:
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Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1
THE NORTHERN TRUST COMPANY
By:
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Name:
Title:
OAK BROOK BANK
By:
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Name:
Title:
RZB FINANCE LLC, CONNECTICUT OFFICE
By:
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Name:
Title:
By:
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Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1
ATTACHMENT A
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of the
foregoing Amendment No. 1 to the 5-Year Revolving Credit Agreement dated as
of March 21, 2003 by and among UNITED STATIONERS SUPPLY CO. (the "Borrower"),
UNITED STATIONERS INC., as a credit party (the "Parent"), the financial
institutions from time to time parties thereto (the "Lenders") and BANK ONE,
NA, in its capacity as administrative agent (the "Agent") (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), which Amendment No. 1 is dated as of June 30, 2004 (the
"Amendment"). Capitalized terms used in this Reaffirmation and not defined
herein shall have the meanings given to them in the Credit Agreement. The
undersigned acknowledge and agree that nothing in the Credit Agreement, the
Amendment or any other Loan Document shall be deemed to require the consent
of the Agent or any Lender to any future amendment or other modification to
the Credit Agreement or any Loan Document. Each of the undersigned reaffirms
the terms and conditions of the Guaranty, the Security Agreement, the
Intellectual Property Security Agreements and any other Loan Document
executed by it and acknowledges and agrees that such agreement and each and
every such Loan Document executed by the undersigned in connection with the
Credit Agreement remains in full force and effect and is hereby reaffirmed,
ratified and confirmed. All references to the Credit Agreement contained in
the above-referenced documents shall be a reference to the Credit Agreement
as so modified by the Amendment and as the same may from time to time
hereafter be amended, modified or restated.
Dated: June 30, 2004
UNITED STATIONERS INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
▇▇▇▇▇▇▇, INC. UNITED STATIONERS TECHNOLOGY
SERVICES LLC
By: By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer Title: Vice President and Treasurer
UNITED STATIONERS FINANCIAL
SERVICES LLC
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
REAFFIRMATION TO AMENDMENT NO. 1