Exhibit 10.18
TERMINATION AGREEMENT
December 29, 2003
Lincolnshire Funding, LLC
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Re: LINCOLNSHIRE FUNDING, LLC (THE "SELLER")
Ladies and Gentlemen:
Reference is made to that certain Receivables Purchase Agreement dated
October 27, 2000 among Seller, Staples, Inc. ("SERVICER"), CRC Funding, LLC (as
successor to Corporate Receivables Corporation, "CRC"), Citibank, N.A.
("CITIBANK"), Lloyds TSB Bank plc ("LLOYDS" and together with Citibank, the
"COMMITTED PURCHASERS") and Citicorp North America, Inc., as agent (the "AGENT")
(as amended prior to the date hereof, the "RECEIVABLES PURCHASE AGREEMENT").
Capitalized terms used and not otherwise defined herein have the meanings
assigned to such terms in the Receivables Purchase Agreement.
The Agent and the Purchasers have been advised that the Seller intends to
terminate the Facility Documents and the Agent and the Purchasers hereby waive
any obligation of the Seller to provide prior notice of such termination.
In connection therewith, the Agent hereby confirms that the aggregate
amount necessary to purchase all Receivables Interests transferred to the Agent
for the benefit of the Purchasers under the Facility Documents (including the
Committed Purchasers in their capacity as Liquidity Providers to CRC), together
with the aggregate of all other amounts owed to the Agent and the Purchasers
under the Facility Documents, if paid no later than 12:00 noon New York time on
or before December 29, 2003 (the "PAYOUT DATE") in same day funds, will be
$25,051,970.81 (the "PAYOUT AMOUNT"). The Payout Amount includes, without
limitation, (i) the aggregate outstanding Capital of the Receivables Interests
under the Receivables Purchase Agreement, (ii) all accrued Yield under the
Receivables Purchase Agreement and (iii) all fees, expenses and other amounts
payable by the Seller or any of its affiliates under any of the Facility
Documents. The Agent confirms that payment in full of the Payout Amount on or
before the
Payout Date will not cause any prepayment penalty or other charge under the
Facility Documents which is not included in the Payout Amount.
Payment of the Payout Amount should be made by wire transfer in
accordance with the instructions given by the Agent to the Seller.
Each of the parties hereto hereby acknowledges and agrees that, in
consideration of the payment in full of the Payout Amount on the Payout Date as
described above, upon the Agent's receipt of such payment in immediately
available funds:
(i) notwithstanding anything in the Facility Documents to the contrary, (A) all
of the Facility Documents to which any Purchaser, any Liquidity Provider or the
Agent is a party will be terminated and none of the parties thereto will have
any further obligations or liabilities thereunder, except for any obligations
that are expressly stated by their terms to survive termination of such Facility
Documents and (B) each of the Agent, the Purchaser, the Committed Purchasers and
CRC hereby terminate their interest in and rights under all of the other
Facility Documents not terminated pursuant to clause (A) above and none of the
parties thereto will have any further obligations or liabilities thereunder to
or with respect to the Agent, the Purchasers, or the Liquidity Providers, except
for any obligations that are expressly stated by their terms to survive
termination of such Facility Documents;
(ii) each Purchaser and the Agent shall be deemed to have assigned (without the
need for any further action by any party hereto or any other Person) to Seller
all of its right, title and interest in and to the Receivables Interests and
other assets (and interests therein) transferred to it under the Facility
Documents, such assignment to be made without representation or warranty of any
kind, other than the representation and warranty herein made by each Purchaser
and the Agent that such Receivables Interests and such other assets (and
interests therein) are free and clear of any Adverse Claim created or granted by
such Purchaser or the Agent;
(iii) all ownership interests, security interests, liens and other encumbrances
granted to, or otherwise existing in favor of, the Agent and the Purchasers in
respect of the Receivables Interests, any Receivables Assets (including, without
limitation, the Receivables, the Related Security and Collections) or other
assets of the Seller shall hereby be automatically released;
(iv) the Agent shall, (i) at the expense of Seller, promptly execute and
deliver, and hereby authorizes the Seller to file or deliver or cause to be
filed or delivered, such instruments and documents as Seller may reasonably
request for the purpose of evidencing the assignment and release described above
including, without limitation, for the purpose of (a) terminating each UCC-1
Financing Statement and account control agreement filed in connection with the
Facility Documents and (b) terminating each Lock-Box Agreement executed in
connection with the Facility Documents and (ii) deliver or cause to be delivered
to Seller as soon as practicable, any and all collateral or other assets which
had been delivered to the Agent or the Purchasers in connection with the
Facility Documents, together with all necessary endorsements and other
instruments and documents as Seller may reasonably request and at the expense of
Seller, for the purpose of evidencing the assignment and release described
above; and
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(v) Each of the Agent and each Purchaser hereby (x) consent to any modification
or termination of (1) any of the Facility Documents not terminated by this
letter agreement, (2) the Amendment Agreement dated October 27, 2000 to the
Franchise Agreement dated February 1, 1998 between Staples The Office
Superstore, Inc. and Staples The Office Superstore East, Inc., and (3) the
Amendment Agreement dated October 27, 2000 to the Franchise Agreement dated
February 1, 1998 between Staples The Office Superstore, Inc. and Staples
Contract & Commercial, Inc., and (y) relinquishes any and all rights under or in
connection with, including any modification or termination of, that certain
Operating Agreement dated February 1, 1998 between The Business Depot, Ltd. and
Staples The Office Superstore, Inc., in each case in a manner which is not
inconsistent with the termination and release provided herein.
The Agent agrees that, upon confirmation of receipt by the Agent of the
Payout Amount on the Payout Date as described above, Seller and its respective
agents and representatives shall be authorized to file UCC termination
statements with respect to all financing statements filed in connection with the
Facility Documents.
The agreements contained herein shall be binding upon the parties hereto
and their respective successors and assigns. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
NEW YORK BUT OTHERWISE WITHOUT REGARDS TO THE LAW OF CONFLICTS.
[signature pages follow]
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This letter agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
Very truly yours,
CRC FUNDING, LLC
By: Citicorp North America, Inc., as Attorney-
in-Fact
By: /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A., as a Committed Purchaser
By: /s/ XXXXXXX X. XXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
LLOYDS TSB BANK plc, as a Committed Purchaser
By: /s/ XXXX XXX
------------
Name: Xxxx Xxx
Title: Assistant Vice President of
Structured Finance
CITICORP NORTH AMERICA, INC., as Agent
By: /s/ XXXXXXX X. XXXXXX
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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Agreed to this 29th day of December, 2003:
LINCOLNSHIRE FUNDING, LLC
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
STAPLES, INC.
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, Finance and Treasurer
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