REVOLVING CREDIT AGREEMENT
dated as of June 21, 2002
STAPLES, INC.
THE LENDERS NAMED HEREIN,
FLEET NATIONAL BANK,
AS AGENT,
CITICORP USA, INC. AND
WACHOVIA BANK, NATIONAL ASSOCIATION
AS CO-SYNDICATION AGENTS,
AND
HSBC BANK USA AND
JPMORGAN CHASE BANK,
AS CO-DOCUMENTATION AGENTS
WITH
FLEET SECURITIES, INC.
HAVING ACTED AS ARRANGER
TABLE OF CONTENTS
PAGE
Section 1. DEFINITIONS AND RULES OF INTERPRETATION................................1
Section 1.1. DEFINITIONS...................................................1
Section 1.2. RULES OF INTERPRETATION......................................15
Section 2. THE REVOLVING CREDIT FACILITY.........................................16
Section 2.1. COMMITMENT TO LEND SYNDICATED LOANS..........................16
Section 2.2. REQUESTS FOR SYNDICATED LOANS................................16
Section 2.3. COMPETITIVE BID LOANS........................................17
Section 2.3.1. COMPETITIVE BID BORROWINGS......................17
Section 2.3.2. MAXIMUM COMPETITIVE BID LOANS; FUNDING LOSSES...20
Section 2.3.3. REPAYMENT OF COMPETITIVE BID LOANS..............20
Section 2.4. FUNDS FOR REVOLVING CREDIT LOANS.............................20
Section 2.4.1. FUNDING PROCEDURES..............................20
Section 2.4.2. ADVANCES BY AGENT...............................20
Section 2.5. THE NOTES....................................................21
Section 2.6. REDUCTION OF TOTAL COMMITMENT................................22
Section 2.7. MATURITY AND OTHER MANDATORY REPAYMENTS OF REVOLVING
CREDIT LOANS.....................................................22
Section 2.8. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS................22
Section 2.9. INTEREST ON REVOLVING CREDIT LOANS...........................23
Section 2.10. CONVERSION OPTIONS...........................................23
Section 2.10.1. CONVERSION TO DIFFERENT TYPE OF SYNDICATED LOAN..23
Section 2.10.2. CONTINUATION OF TYPE OF SYNDICATED LOAN..........23
Section 2.10.3. EURODOLLAR RATE LOANS............................24
Section 2.11. THE SWING LINE..............................................24
Section 2.11.1. THE SWING LINE LOANS.............................24
Section 2.11.2. NOTICE OF BORROWING..............................24
Section 2.11.3. INTEREST ON SWING LINE LOANS.....................25
Section 2.11.4. REPAYMENT OF SWING LINE LOANS....................25
Section 2.11.5. THE SWING LINE NOTE..............................26
Section 2.12. REQUEST FOR EXTENSION OF MATURITY DATE......................26
Section 3. LETTERS OF CREDIT.....................................................26
Section 3.1. LETTERS OF CREDIT............................................26
Section 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.....................27
Section 3.3. LETTER OF CREDIT LOAN OBLIGATIONS ABSOLUTE...................27
Section 3.4. OBLIGATIONS OF THE LENDERS...................................28
Section 3.5. LETTER OF CREDIT FEE.........................................29
Section 4. CERTAIN GENERAL PROVISIONS; FEES......................................29
Section 4.1. CLOSING AND AGENT FEES.....................................29
Section 4.2. OTHER FEES.................................................29
Section 4.2.1. FACILITY FEE....................................29
Section 4.2.2. UTILIZATION FEE.................................29
Section 4.3. FUNDS FOR PAYMENTS.........................................30
Section 4.3.1. PAYMENTS TO AGENT...............................30
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Section 4.3.2. NO OFFSET, ETC..................................30
Section 4.3.3. WITHHOLDING.....................................30
Section 4.4. COMPUTATIONS...............................................31
Section 4.5. INABILITY TO DETERMINE EURODOLLAR RATE.....................31
Section 4.6. ILLEGALITY.................................................31
Section 4.7. ADDITIONAL COSTS, ETC......................................32
Section 4.8. CAPITAL ADEQUACY...........................................33
Section 4.9. CERTIFICATE................................................33
Section 4.10. INDEMNITY..................................................33
Section 4.11. INTEREST ON OVERDUE AMOUNTS................................34
Section 4.12. REPLACEMENT OF INDIVIDUAL LENDERS..........................34
Section 4.13. GUARANTIES.................................................34
SECTION 5. REPRESENTATIONS AND WARRANTIES........................................35
Section 5.1. CORPORATE AUTHORITY........................................35
Section 5.1.1. INCORPORATION; GOOD STANDING....................35
Section 5.1.2. AUTHORIZATION...................................35
Section 5.1.3. ENFORCEABILITY..................................35
Section 5.2. GOVERNMENTAL APPROVALS.....................................36
Section 5.3. TITLE TO PROPERTIES; LEASES................................36
Section 5.4. FINANCIAL STATEMENTS; FISCAL YEAR..........................36
Section 5.5. NO MATERIAL CHANGES, ETC...................................36
Section 5.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC.......................37
Section 5.7. LITIGATION.................................................37
Section 5.8. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC...............37
Section 5.9. TAX STATUS.................................................37
Section 5.10. NO EVENT OF DEFAULT........................................37
Section 5.11. HOLDING COMPANY AND INVESTMENT COMPANY ACTS................37
Section 5.12. EMPLOYEE BENEFIT PLANS.....................................37
Section 5.12.1. IN GENERAL.......................................37
Section 5.12.2. TERMINABILITY OF WELFARE PLANS...................38
Section 5.12.3. GUARANTEED PENSION PLANS.........................38
Section 5.12.4. MULTIEMPLOYER PLANS..............................38
Section 5.13. REGULATIONS U AND X, ETC..................................38
Section 5.14. ENVIRONMENTAL COMPLIANCE..................................38
Section 5.15. SUBSIDIARIES, ETC.........................................39
SECTION 6. AFFIRMATIVE COVENANTS OF THE BORROWER.................................39
Section 6.1. PUNCTUAL PAYMENT...........................................40
Section 6.2. MAINTENANCE OF OFFICE......................................40
Section 6.3. RECORDS AND ACCOUNTS.......................................40
Section 6.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.........40
Section 6.5. NOTICES....................................................41
Section 6.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES.................41
Section 6.7. INSURANCE..................................................42
Section 6.8. TAXES......................................................42
Section 6.9. INSPECTION OF PROPERTIES AND BOOKS, ETC....................42
Section 6.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.....42
Section 6.11. EMPLOYEE BENEFIT PLANS.....................................43
Section 6.12. USE OF PROCEEDS............................................43
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Section 6.13. LICENSES AND PERMITS.......................................43
Section 6.14. FURTHER ASSURANCES.........................................43
Section 7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER............................43
Section 7.1. RESTRICTIONS ON INDEBTEDNESS ..............................43
Section 7.2. RESTRICTIONS ON LIENS......................................45
Section 7.3. RESTRICTIONS ON INVESTMENTS................................47
Section 7.4. DISTRIBUTIONS..............................................48
Section 7.5. EMPLOYEE BENEFIT PLANS.....................................48
Section 7.6. MERGER AND CONSOLIDATION; ACQUISITIONS.....................48
Section 7.7. DISPOSITION OF ASSETS AND SALE-LEASEBACK TRANSACTIONS......49
Section 7.8. SUBORDINATED DEBT..........................................49
Section 8. FINANCIAL COVENANTS OF THE BORROWER...................................49
Section 8.1. FIXED CHARGE COVERAGE RATIO................................49
Section 8.2. ADJUSTED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO.........50
Section 9. CLOSING CONDITIONS....................................................50
Section 9.1. LOAN DOCUMENTS............................................50
Section 9.2. CERTIFIED COPIES OF CHARTER DOCUMENTS......................50
Section 9.3. CORPORATE ACTION...........................................50
Section 9.4. INCUMBENCY CERTIFICATE.....................................50
Section 9.5. OPINION OF COUNSEL.........................................50
Section 9.6. PAYMENT OF FEES............................................50
Section 9.7. TERMINATION OF EXISTING CREDIT AGREEMENTS..................51
Section 9.8. COMPLIANCE CERTIFICATE.....................................51
Section 9.9. UCC SEARCH RESULTS.........................................51
Section 9.10. CERTIFICATE OF INSURANCE...................................51
Section 9.11. NO MATERIAL ADVERSE CHANGE.................................51
Section 10. CONDITIONS TO ALL BORROWINGS.........................................51
Section 10.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.................51
Section 10.2. NO LEGAL IMPEDIMENT.......................................51
Section 10.3. GOVERNMENTAL REGULATION...................................51
Section 10.4. PROCEEDINGS AND DOCUMENTS.................................52
Section 11. EVENTS OF DEFAULT; ACCELERATION; ETC.................................52
Section 11.1. EVENTS OF DEFAULT AND ACCELERATION........................52
Section 11.2. TERMINATION OF COMMITMENTS................................55
Section 11.3. REMEDIES..................................................55
Section 12. SETOFF...............................................................55
Section 13. THE AGENT............................................................56
Section 13.1. AUTHORIZATION.............................................56
Section 13.2. EMPLOYEES AND AGENTS......................................57
Section 13.3. NO LIABILITY..............................................57
Section 13.4. NO REPRESENTATIONS........................................57
Section 13.4.1. GENERAL..........................................57
Section 13.4.2. CLOSING DOCUMENTATION, ETC.......................57
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Section 13.5. PAYMENTS..................................................58
Section 13.5.1. PAYMENTS TO AGENT................................58
Section 13.5.2. DISTRIBUTION BY AGENT............................58
Section 13.5.3. DELINQUENT LENDERS...............................58
Section 13.6. HOLDERS OF NOTES..........................................58
Section 13.7. INDEMNITY.................................................58
Section 13.8. AGENT AS LENDER; ETC......................................59
Section 13.9. RESIGNATION...............................................59
Section 13.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT............59
Section 14. EXPENSES.............................................................59
Section 15. INDEMNIFICATION......................................................60
Section 16. SURVIVAL OF COVENANTS, ETC...........................................60
Section 17. ASSIGNMENT AND PARTICIPATION.........................................61
Section 17.1. CONDITIONS TO ASSIGNMENT BY LENDERS.......................61
Section 17.2. CERTAIN REPRESENTATIONS AND WARRANTIES;
LIMITATIONS; COVENANTS........................................61
Section 17.3. REGISTER..................................................62
Section 17.4. NEW NOTES.................................................62
Section 17.5. PARTICIPATIONS............................................62
Section 17.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER......63
Section 17.7. MISCELLANEOUS ASSIGNMENT PROVISIONS.......................63
Section 17.8. ASSIGNMENT BY BORROWER....................................64
Section 18. NOTICES, ETC.........................................................64
Section 19. GOVERNING LAW........................................................64
Section 20. HEADINGS.............................................................65
Section 21. COUNTERPARTS.........................................................65
Section 22. ENTIRE AGREEMENT, ETC................................................65
Section 23. WAIVER OF JURY TRIAL.................................................65
Section 24. CONSENTS, AMENDMENTS, WAIVERS, ETC...................................65
Section 25. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION........................66
Section 25.1. CONFIDENTIALITY...........................................66
Section 25.2. PRIOR NOTIFICATION........................................67
Section 25.3. OTHER.....................................................67
Section 26. SEVERABILITY.........................................................67
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EXHIBITS AND SCHEDULES
Exhibit A Form of Loan Request
Exhibit B Form of Competitive Bid Quote Request
Exhibit C Form of Invitation for Competitive Bid Quotes
Exhibit D-1 Form of Competitive Bid Quote
Exhibit D-2 Form of Notice of Competitive Bid Borrowing
Exhibit D-3 Form of Notice of Competitive Bid Loans
Exhibit E-1 Form of Syndicated Note
Exhibit E-2 Form of Competitive Bid Note
Exhibit E-3 Form of Swing Line Note
Exhibit F Form of Guaranty
Exhibit G Form of Compliance Certificate
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Swing Line Loan Request
Schedule 1 Lenders
Schedule 2 Guarantors
Schedule 5.3 Title to Properties, Leases
Schedule 5.7 Litigation
Schedule 5.9 Taxes
Schedule 5.12 Pension Liabilities
Schedule 5.14 Environmental Compliance
Schedule 5.15(a) Subsidiaries
Schedule 5.15(b) Joint Ventures and Partnerships
Schedule 5.15(c) Equity Interests of 50% or Less
Schedule 7.1 Existing Indebtedness
Schedule 7.2 Existing Liens
Schedule 7.3 Existing Investments
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of June 21, 2002, is by and among
(a) STAPLES, INC. (the "BORROWER"), a Delaware corporation having its principal
place of business at 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, (b) FLEET NATIONAL
BANK and the other lending institutions listed on SCHEDULE 1 attached hereto
(the "LENDERS"), (c) FLEET NATIONAL BANK, as administrative agent (in such
capacity, the "AGENT") for the Lenders, (d) CITICORP USA, INC. and WACHOVIA
BANK, NATIONAL ASSOCIATION, as co-syndication agents for the Lenders
(collectively the "CO-SYNDICATION AGENTS"), and (e) HSBC BANK USA and JPMORGAN
CHASE BANK, as co-documentation agents for the Lenders (collectively the
"CO-DOCUMENTATION AGENTS").
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:
ADJUSTMENT DATE. The date which is three (3) Business Days after a
Compliance Certificate is delivered by the Borrower pursuant to Section 6.4(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.
AGENTS. Collectively, (a) the Agent, (b) the Co-Syndication Agents and (c)
the Co-Documentation Agents.
AGENT FEES. See Section 4.1 hereof.
AGENT'S HEAD OFFICE. The Agent's office located at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Agent may
designate from time to time.
AGENT'S SPECIAL COUNSEL. Xxxxxxx Xxxx 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 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
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that the Senior Debt Ratings assigned by Xxxxx'x 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 (i) the Applicable Margin with respect to Eurodollar Rate
Loans shall be the rate per annum set forth in column D in the table below,
(ii) the Facility Fee shall be the rate per annum set forth in column E in
the table below and (iii) the Utilization Fee shall be the rate per annum set
forth in column F.
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
A B C D E F
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
LEVEL FIXED CHARGE SENIOR DEBT RATING EURODOLLAR FACILITY FEE UTILIZATION FEE
COVERAGE RATIO RATE LOANS
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
I greater than
or equal to
2.75:1 S&P: A- 0.350% 0.100% 0.050%
Xxxxx'x: A3 or better
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
II greater than
or equal to
2.50:1 S&P: BBB+ 0.525% 0.125% 0.100%
and Xxxxx'x: Baa1 or better
less than
2.75:1
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
III greater than
or equal to
2.25:1 S&P: BBB 0.650% 0.150% 0.075%
and Xxxxx'x: Baa2 or better
less than
2.50:1
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
IV greater than
or equal to
2.00:1 S&P: BBB- 0.800% 0.200% 0.125%
and Xxxxx'x: Baa3 or better
less than
2.25:1
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
V greater than
or equal to
1.75:1 S&P: BB+ 0.950% 0.300% 0.250%
and Xxxxx'x: Ba1 or better
less than
2.00:1
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
VI less than
1.75:1 lower than 1.100% 0.350% 0.300%
S&P: BB+
Xxxxx'x: Ba1 or unrated
------------- ------------------- ------------------------ ---------------- ----------------- --------------------
Notwithstanding the foregoing, (A) for the period commencing on the Closing
Date through the date immediately preceding the first Adjustment Date to occur
after the date which is six months from the Closing 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 6.4(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.
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.
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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.
ARRANGER. Fleet Securities, Inc., a Massachusetts corporation.
ASSIGNMENT AND ACCEPTANCE. See Section 17.1 hereof.
BALANCE SHEET DATE. February 2, 2002.
BASE RATE LOANS. Any Revolving Credit Loans bearing interest calculated by
reference to the Prime 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 Eurodollar Rate Loans, also a day which is a
Eurodollar Business Day.
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.
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
hereof have been satisfied, which shall be no later than June 30, 2002.
CODE. The Internal Revenue Code of 1986.
CO-DOCUMENTATION AGENTS. As defined in the preamble hereto.
COMMITMENT. The agreement of each Lender, subject to the terms and
conditions of this Credit Agreement, to make Revolving Credit Loans to, and to
participate in Swing Line Loans and the issuance, extension and renewal of
Letters of Credit for the account of the Borrower.
COMMITMENT AMOUNT. With respect to each Lender, the amount of such
Lender's Commitment set forth on SCHEDULE 1 attached hereto, as the same may
be reduced from time to time in accordance with the terms of this Credit
Agreement; or if the Total Commitment is terminated pursuant to the
provisions hereof, zero.
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COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1 attached hereto as such Lender's percentage of the Total
Commitment.
COMPETITIVE BID LOAN(S). A borrowing hereunder consisting of one or more
revolving credit loans made by any of the Lenders whose offer to make a
revolving credit loan as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section 2.3 hereof.
COMPETITIVE BID NOTE. See Section 2.5(b) hereof.
COMPETITIVE BID QUOTE. An offer by a Lender to make a Competitive Bid Loan
in accordance with Section 2.3 ereof.
COMPETITIVE BID QUOTE REQUEST. See Section 2.3.1(b) hereof.
COMPETITIVE BID RATE. See Section 2.3.1(d)(ii)(C) hereof.
COMPETITIVE BID SUBLIMIT. $150,000,000.
COMPLIANCE CERTIFICATE. See Section 6.4(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).
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
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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; PROVIDED that for
purposes of calculating the Obligor Group Requirement, the Persons included in
the calculation of Consolidated Total Assets shall be as set forth in the
definition of the Obligor Group Requirement.
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 business, and (c) reimbursement
obligations in respect of documentary trade letters of credit.
CONVERSION REQUEST. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Syndicated Loan in accordance with
Section 2.10 hereof.
CO-SYNDICATION AGENTS. As defined in the preamble hereto.
CREDIT AGREEMENT. This Revolving Credit Agreement, including the Schedules
and Exhibits hereto.
DEFAULT. See Section 11.1 hereof.
DELINQUENT LENDER. See Section 13.5.3 hereof.
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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 Base Rate Loans.
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 any Syndicated Loan is made or is to be
made, and the date on which any Syndicated Loan is converted or continued in
accordance with Section 2.10 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 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; and (e) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution or other Person approved by the Agent, such approval
not to be unreasonably withheld.
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 ("XXXX"), 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,
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(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 000 Xxxxxxxx X; (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.
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.
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 Eurodollar Rate Loans.
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 LOANS. Any Syndicated Loans bearing interest calculated by
reference to the Eurodollar Rate.
EVENT OF DEFAULT. See Section 11.1 hereof.
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EXISTING CREDIT AGREEMENTS. Collectively, (a) the Revolving Credit
Agreement, dated as of November 13, 1997, as amended, by and among the Borrower,
the lending institutions party thereto, Fleet National Bank (f/k/a BankBoston,
N.A.) as administrative and documentation agent for such lending institutions,
The Chase Manhattan Bank, as syndication agent for such lending institutions,
and the co-agents named therein and (b) the Revolving Credit Agreement dated as
of June 25, 2001, as amended, by and among the Borrower, the lending
institutions party thereto, Fleet National Bank as administrative agent for such
lending institutions and Citibank, N.A. and First Union National Bank, as
documentation agents for such lending institutions.
FACILITY FEE. See Section 4.2.1 hereof.
FEE LETTER. See Section 4.1 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).
FIXED CHARGE COVERAGE RATIO. See Section 8.1 hereof.
FIXED RATE LOAN. A Swing Line Loan bearing interest at a fixed rate for a
period of time agreed to by the Borrower and the Agent pursuant to Section
2.11.3.
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
7 and 8 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.
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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 4.13 hereof.
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.
INTEREST PAYMENT DATE. (a) As to any Base Rate Loan, the last day of the
calendar quarter which includes the Drawdown Date thereof; (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; (c) as to any Competitive Bid Loan, on the last day of the Interest
Period applicable thereto; and (d) with respect to any Swing Line Loan, the day
that such Swing Line Loan is required to be repaid.
INTEREST PERIOD. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of
one of the periods set forth below, as selected by the Borrower in a Loan
Request (i) for any Base Rate Loan, the last day of the calendar quarter;
(ii) for any Eurodollar Rate Loan, 1, 2, 3 or 6 months; (iii) for any
Competitive Bid Loan, from 7 through 120 days; and (iv) for any Fixed Rate
Loan, the period requested by the Borrower and agreed to by the Agent
pursuant to Section 2.11.3, and (b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such Loan 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
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event such Interest Period shall end on the immediately preceding
Eurodollar Business Day;
(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
2.10 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 all Base Rate Loans as Base Rate Loans 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;
(E) any Interest Period relating to any Revolving Credit Loan that
would otherwise extend beyond the Maturity Date shall end on the Maturity
Date; and
(F) if the Borrower shall fail to give notice to the Agent of its
intention to continue a Fixed Rate Loan as provided in Section 2.11.3, the
Borrower shall be deemed to have requested a conversion of the affected
Fixed Rate Loan to a Swing Line Loan which is not a Fixed Rate Loan on the
last day of the then current Interest Period with respect thereto.
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.
INVITATION FOR COMPETITIVE BID QUOTES. See Section 2.3.1(c) hereof.
ISSUING BANK. Fleet, HSBC Bank USA or such other lender as may be selected
by the Borrower, with the consent of the Agent (such consent not to be
unreasonably withheld), to issue Letters of Credit hereunder. An Issuing Bank
may arrange, with the consent of the Borrower, for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any
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such Affiliate with respect to Letters of Credit issued by such Affiliate.
Nothing herein shall be deemed to restrict the right of an Issuing Bank to issue
letters of credit outside of this Credit Agreement.
JOINDER AGREEMENTS. Joinder agreements in substantially the form of EXHIBIT
I hereto 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 Section 17 hereof. Unless the context otherwise requires, the term
"Lenders" includes the Issuing Bank and the Agent in its capacity as lender of
the Swing Line Loans.
LETTER(S) OF CREDIT. Standby and documentary letters of credit issued by
the Issuing Bank from time to time for the account of the Borrower hereunder.
LETTER OF CREDIT FEE. See Section 3.5 hereof.
LOAN DOCUMENTS. This Credit Agreement, the Notes, the Guaranties, the Fee
Letter and any other documents delivered pursuant to this Credit Agreement.
LOAN REQUEST. See Section 2.2 hereof.
LOANS. Revolving Credit Loans made or to be made by the Lenders to the
Borrower pursuant to Section 2 hereof, whether Syndicated Loans or Competitive
Bid Loans, and Swing Line Loans.
MARGIN REGULATIONS. See Section 5.13 hereof.
MATURITY DATE. June 21, 2005, as the same may be extended in the discretion
of the Lenders pursuant to Section 2.12.
MAXIMUM DRAWING AMOUNT. On the date as of which the maximum drawing amount
is to be determined, the aggregate maximum amount which the beneficiaries may
draw from time to time under Letters of Credit issued for the account of the
Borrower pursuant to Section 3.1 hereof.
MEASUREMENT PERIOD. See Section 8.1 hereof.
MONEY MARKET RATE. With respect to any Swing Line Loan, the lesser of (a)
the Prime Rate and (b) such other rate per annum as is quoted by the Agent from
time to time for Swing Line Loans.
MOODY'S. Xxxxx'x 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.
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NOTES. The Syndicated Notes, the Competitive Bid Notes and the Swing Line
Note, or, when used in the singular, any of such Notes.
NOTICE OF COMPETITIVE BID BORROWING. See Section 2.3.1(f) hereof.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Lenders and the Agent, individually
or collectively, 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, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Loans made or Reimbursement Obligations incurred, or any of the Notes,
Reimbursement Agreements, Letters of Credit or other instruments at any time
evidencing any thereof.
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).
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.
OPTION LOANS. See Section 7.3 hereof.
OUTSTANDING or OUTSTANDING. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination.
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 7.2 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.
PRIME 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 Prime Rate resulting from any
changes in Fleet's "prime rate" shall take place immediately without notice or
demand of any kind.
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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 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 Note.
REFERENCE LENDER. Fleet.
REIMBURSEMENT AGREEMENTS. The applications made and agreements entered into
between the Issuing Bank and the Borrower relating to Letters of Credit in form
and substance satisfactory to the Issuing Bank.
REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the
Issuing Bank on account of any drawing under any Letter of Credit.
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 4.12 hereof.
REQUIRED LENDERS. As of any date, the Lenders holding more than fifty
percent (50%) of the outstanding principal amount of the Syndicated Notes on
such date; and if no such principal is outstanding, the Lenders whose aggregate
Commitment Amounts constitute more than fifty percent (50%) of the Total
Commitment.
REVOLVER PERIOD. The period beginning on the Closing Date to and including
the day immediately preceding the Maturity Date.
REVOLVING CREDIT LOANS. Collectively, the Syndicated Loans and the
Competitive Bid Loans.
S&P. Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc.
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).
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SENIOR DEBT RATING. The rating issued by S&P or Xxxxx'x 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 4.12 hereof.
SWING LINE LOAN MATURITY DATE. With respect to any Swing Line Loan, the
date specified by the Borrower in the Swing Line Loan Request relating thereto
as the maturity date of such Swing Line Loan, which in no event shall be later
than the earlier to occur of (a) ten (10) days after the Drawdown Date of such
Swing Line Loan and (b) the Maturity Date.
SWING LINE LOAN REQUEST. See Section 2.11.1.
SWING LINE LOANS. See Section 2.11.1 hereof.
SWING LINE NOTE. See Section 2.11.5 hereof.
SWING LINE SUBLIMIT. $60,000,000.
SYNDICATED LOAN(S). One or more revolving credit loans funded by the
Lenders in accordance with their respective Commitment Percentages.
SYNDICATED NOTE. See Section 2.5(a) 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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TOTAL COMMITMENT. The sum of the Commitment Amounts of the Lenders, as in
effect from time to time. The Total Commitment as of the Closing Date is
$600,000,000.
TYPE. As to any Syndicated Loan, its nature as a Base Rate Loan or a
Eurodollar Rate Loan.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which the
Borrower has not reimbursed the Issuing Bank.
UTILIZATION FEE. See Section 4.2.2 hereof.
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.
(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.
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(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 REVOLVING CREDIT FACILITY.
SECTION 2.1. COMMITMENT TO LEND SYNDICATED LOANS. Subject to the terms and
conditions set forth in this Credit Agreement, each of the Lenders severally
agrees from time to time during the Revolver Period to make Syndicated Loans to
the Borrower in such amounts as are requested by the Borrower, PROVIDED, that
the sum of the aggregate principal amount of Syndicated Loans made by each
Lender (after giving effect to all amounts requested) shall not at any time
exceed such Lender's Commitment Amount (without regard to any Competitive Bid
Loans of such Lender outstanding at such time), and PROVIDED, FURTHER, that (a)
at no time shall the sum of, without duplication, (i) the outstanding Syndicated
Loans, PLUS (ii) the outstanding Swing Line Loans, PLUS (iii) the Maximum
Drawing Amount, PLUS (iv) all Unpaid Reimbursement Obligations, PLUS (v) the
outstanding Competitive Bid Loans exceed the Total Commitment, and (b) subject
to Section 2.4.1 and Section 13.5.3, at all times the outstanding aggregate
principal amount of all Syndicated Loans made by each Lender shall equal such
Lender's Commitment Percentage of the outstanding Syndicated Loans made by all
Lenders pursuant to the terms of this Credit Agreement. Subject to the terms and
conditions set forth in this Credit Agreement, the Borrower may borrow, repay
and reborrow Syndicated Loans from time to time during the Revolver Period upon
notice by the Borrower to the Agent given in accordance with Section 2.2 hereof.
Each request for a Syndicated Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in Sections 9 and 10
hereof, in the case of the initial Syndicated Loans to be made on the Closing
Date, and Section 10 hereof, in the case of all other Syndicated Loans, shall
have been satisfied on the date of such request.
SECTION 2.2. REQUESTS FOR SYNDICATED LOANS. The Borrower shall give to the
Agent written notice in the form of EXHIBIT A attached hereto (or telephonic
notice confirmed in a writing in the form of EXHIBIT A attached hereto) of each
Syndicated Loan requested hereunder (a "LOAN REQUEST") not later than (a) 12:00
noon (Boston time) on the proposed Drawdown Date of any Base Rate Loan and (b)
12:00 noon (Boston time) three (3) Eurodollar Business Days prior to the
proposed Drawdown Date of any Eurodollar Rate Loan. Each such notice shall
specify (i) the principal amount of the Syndicated Loan requested, (ii) the
proposed Drawdown Date of such Syndicated Loan, (iii) the Interest Period for
such Syndicated Loan and (iv) the Type of such
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Syndicated Loan. Promptly upon receipt of any such notice, the Agent shall
notify each of the Lenders thereof. Each Loan Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to accept the Syndicated
Loan requested from the Lenders on the proposed Drawdown Date. Each Loan Request
shall be (A) in a minimum aggregate amount of $1,000,000 or an integral multiple
thereof with respect to Base Rate Loans and (B) in a minimum aggregate amount of
$2,000,000 or an integral multiple of $l,000,000 with respect to Eurodollar Rate
Loans.
SECTION 2.3. COMPETITIVE BID LOANS.
SECTION 2.3.1. COMPETITIVE BID BORROWINGS.
(a) THE COMPETITIVE BID OPTION. In addition to the Syndicated Loans
permitted to be made hereunder pursuant to Section 2.1 hereof, the Borrower
may, from time to time during the Revolver Period pursuant to the terms of
this Section 2.3, cause the Agent to request the Lenders to make offers to
fund Competitive Bid Loans to the Borrower from time to time prior to the
Maturity Date. The Lenders may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept such
offers in the manner set forth in this Section 2.3. Each Lender may make
Competitive Bid Loans in an aggregate amount (after giving effect to all
amounts requested) not to exceed the lesser of (i) the Total Commitment and
(ii) the Competitive Bid Sublimit, PROVIDED that at no time shall the sum
of (A) the aggregate amount of all outstanding Syndicated Loans, PLUS (B)
the aggregate amount of all outstanding Swing Line Loans, PLUS (C) the
Maximum Drawing Amount, PLUS (D) all Unpaid Reimbursement Obligations, PLUS
(E) the aggregate outstanding amount of Competitive Bid Loans exceed the
Total Commitment.
(b) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to request
offers to make Competitive Bid Loans under this Section 2.3, it shall
transmit to the Agent by telex or facsimile a Competitive Bid Quote Request
substantially in the form of EXHIBIT B attached hereto (a "COMPETITIVE BID
QUOTE REQUEST") so as to be received no later than 1:00 p.m. (Boston time)
on the second Business Day prior to the requested Drawdown Date, specifying
(i) the requested Drawdown Date (which must be a Business Day), (ii) the
principal amount of such Competitive Bid Loan (which must be a minimum of
$2,000,000 or any greater integral multiple of $1,000,000 and may not
exceed the lesser of (A) the Total Commitment and (B) the Competitive Bid
Sublimit), and (iii) the Interest Period of such Competitive Bid Loan,
subject to the provisions of the definition of Interest Period. A
Competitive Bid fee of $750 shall be payable by the Borrower to the Agent
with respect to each Competitive Bid Quote Request on the last day of the
calendar quarter in which such Competitive Bid Quote Request was made. The
Borrower may request offers to make Competitive Bid Loans for one amount
and three Interest Periods in a single Competitive Bid Quote Request. No
new Competitive Bid Quote Request shall be given until the Borrower has
notified the Agent of its acceptance or non-acceptance of the Competitive
Bid Quotes relating to any outstanding Competitive Bid Quote Request.
(c) INVITATION FOR COMPETITIVE BID QUOTES; ALTERNATIVE MANNER OF
AUCTION. Subsequent to timely receipt of a Competitive Bid Quote Request,
the Agent shall send to the Lenders by telex or facsimile an Invitation for
Competitive Bid Quotes substantially in the form of EXHIBIT C attached
hereto (an "INVITATION FOR COMPETITIVE BID QUOTES"), as promptly as
possible but not later than 3:00 p.m. (Boston time) on the second Business
Day prior to the requested Drawdown Date which shall constitute an
invitation by the Borrower to each Lender to submit Competitive Bid Quotes
offering to make Competitive Bid Loans to which such
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Competitive Bid Quote Request relates in accordance with this Section 2.3.
If, after receipt by the Agent of a Competitive Bid Quote Request from the
Borrower in accordance with subsection (b) of this Section 2.3.1, the Agent
or any Lender shall be unable to complete any procedure of the auction
process described in subsections (c) through (f) (inclusive) of this
Section 2.3.1 due to the inability of such Person to transmit or receive
communications through the means specified therein, such Person may rely on
telephonic notice for the transmission or receipt of such communications.
In any case where such Person shall rely on telephone transmission or
receipt, any communication made by telephone shall, as soon as possible
thereafter, be followed by written confirmation thereof.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(i) Each Lender may, but shall be under no obligation to, submit
a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive
Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this subsection (d) and must be submitted to the Agent
by telex or facsimile not later than 10:00 a.m. (Boston time) on the
requested Drawdown Date, PROVIDED, that Competitive Bid Quotes may be
made by the Agent in its capacity as a Lender only if it notifies the
Borrower of the terms of its Competitive Bid Quote no later than 9:30
a.m. (Boston time) on the requested Drawdown Date. Subject to the
provisions of Sections 9 and 10 hereof, any Competitive Bid Quote so
made shall be irrevocable except with the written consent of the Agent
given on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially the
form of EXHIBIT D-1 attached hereto and shall in any case specify:
(A) the requested Drawdown Date and Interest Periods;
(B) the principal amount of the Competitive Bid Loan for
which each such offer is being made, which principal amount (X)
may be greater than the Commitment Amount of the quoting Lender
but may not exceed the lesser of (I) the Total Commitment and
(II) the Competitive Bid Sublimit, (Y) must be $2,000,000 or a
larger multiple of $1,000,000 and (Z) may not exceed the
aggregate principal amount of Competitive Bid Loans for which
offers were requested,
(C) the rate of interest per annum (rounded to the nearest
1/1000th of 1%) (the "COMPETITIVE BID RATE") offered for each
such Competitive Bid Loan; and
(D) the identity of the quoting Lender.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in the form of EXHIBIT D-1 attached
hereto or does not specify all of the information required by
subsection (d)(ii) of this Section 2.3.1;
(B) contains qualifying, conditional or similar language
(except that it may, in the case of a quote relating to more than
one Interest Period, contain the condition that the Lender will
fund any one, but not more, of the Competitive Bid Loans offered
in such Competitive Bid Quote);
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(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(D) arrives after the time set forth in subsection (d)(i) of
this Section 2.3.1.
(e) NOTICE TO BORROWER. Not later than 10:30 a.m. (Boston time) on the
requested Drawdown Date, the Agent shall notify the Borrower of the terms
of all Competitive Bid Quotes submitted by the Lenders in accordance with
subsection (d) of this Section 2.3.1. The Agent's notice to the Borrower
shall specify (i) the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in
the related Competitive Bid Quote Request, and (ii) the respective
principal amounts and Competitive Bid Rates so offered.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 11:00 a.m.
(Boston time) on the requested Drawdown Date, the Borrower shall notify the
Agent, and the Agent shall promptly notify each Lender with respect to its
offer, of the Borrower's acceptance or non-acceptance of the offers of
which it was notified pursuant to subsection (e) of this Section 2.3.1. In
the case of an acceptance, such notice shall (i) be substantially in the
form of EXHIBIT D-2 attached hereto (a "NOTICE OF COMPETITIVE BID
BORROWING"), (ii) be irrevocable by the Borrower, and (iii) specify the
aggregate principal amount of offers for each Interest Period that are
accepted. Each acceptance by the Borrower of Competitive Bid Loans
hereunder shall constitute a representation and warranty by the Borrower
that the conditions set forth in Sections 9 and 10 hereof have been
satisfied on the date of such acceptance. The Borrower may accept any
Competitive Bid Quote in whole or in part; PROVIDED that:
(A) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,
(B) the aggregate principal amount of each Competitive Bid
Loan must be $2,000,000 or a larger multiple of $1,000,000, and
(C) acceptance of offers may only be made on the basis of
ascending Competitive Bid Rates.
(g) ALLOCATION BY AGENT; USAGE OF COMMITMENTS. If offers are made by
two or more Lenders with the same Competitive Bid Rates, for a greater
aggregate principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples, not less than $100,000 as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. If any such
Lender has indicated a minimum principal amount of Competitive Bid Loans in
its Competitive Bid Request, and under the procedures of this subsection
(g), the Agent would have allocated to it an amount less than such minimum,
such Competitive Bid Quote will instead be deemed to have been withdrawn.
Determination by the Agent of the amounts of Competitive Bid Loans and the
allocation thereof shall be conclusive in the absence of manifest error.
The Agent shall, promptly after the funding of any Competitive Bid Loan,
notify the Lenders thereof pursuant to a notice substantially in the form
of EXHIBIT D-3 attached hereto.
(h) FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the Drawdown
Date of any Competitive Bid Loan, the Total Commitment has not terminated
in full and if, on such
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Drawdown Date, the applicable conditions of Sections 9 and 10 hereof are
satisfied, the Lender or Lenders whose offers the Borrower has accepted
will fund each Competitive Bid Loan so accepted as provided in Section
2.4.1 hereof.
SECTION 2.3.2. MAXIMUM COMPETITIVE BID LOANS; FUNDING LOSSES. (a)
Notwithstanding any other provision herein to the contrary, at no time shall the
aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the lesser of (i) the Total Commitment MINUS the sum of (A) the aggregate
principal amount of Syndicated Loans outstanding at such time PLUS (B) the
aggregate principal amount of Swing Line Loans outstanding at such time PLUS (C)
the Maximum Drawing Amount PLUS (D) all Unpaid Reimbursement Obligations and
(ii) the Competitive Bid Sublimit.
(b) If after acceptance of any Competitive Bid Quote pursuant to
Section 2.3.1(f) hereof, the Borrower fails to borrow any Competitive Bid
Loan so accepted on the date specified therefor, the Borrower shall
indemnify the Lender funding such Competitive Bid Loan against any loss or
expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund or maintain such unborrowed
Competitive Bid Loans, including, without limitation, compensation as
provided in Section 4.10 hereof.
SECTION 2.3.3. REPAYMENT OF COMPETITIVE BID LOANS. The principal of
each Competitive Bid Loan shall become absolutely due and payable by the
Borrower on the last day of the Interest Period relating thereto, and the
Borrower hereby absolutely and unconditionally promises to pay to the Agent, for
the accounts of the relevant Lenders, on the last day of the Interest Period
relating thereto the principal amount of all such Competitive Bid Loans PLUS
interest thereon at the applicable Competitive Bid Rate. Subject to the terms of
this Credit Agreement, the Borrower may reborrow any amounts so repaid from time
to time prior to the Maturity Date.
SECTION 2.4. FUNDS FOR REVOLVING CREDIT LOANS.
SECTION 2.4.1. FUNDING PROCEDURES. Not later than 1:30 p.m. (Boston
time) on the proposed Drawdown Date of any Syndicated Loans or Competitive Bid
Loans, as applicable, each of the relevant Lenders will make available to the
Agent, at the Agent's Head Office, in immediately available funds, the amount of
such Lender's Commitment Percentage of the amount of the requested Syndicated
Loans or the amount of such Lender's Competitive Bid Loan, as applicable. Upon
receipt from each Lender of such amount, and upon receipt of the documents
required by Sections 9 and 10 hereof and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such Revolving Credit Loans
made available to the Agent by the relevant Lenders. The failure or refusal of
any Lender to make available to the Agent its Commitment Percentage of the
requested Syndicated Loans on any Drawdown Date shall not excuse any other
Lender from making available to the Agent the amount of such other Lender's
Commitment Percentage of any requested Syndicated Loans.
SECTION 2.4.2. ADVANCES BY AGENT. The Agent may, unless notified to
the contrary by any Lender prior to a Drawdown Date, assume that such Lender has
made available to the Agent on such Drawdown Date the amount of such Lender's
Commitment Percentage of the Syndicated Loans (or, in the case of Competitive
Bid Loans, the amount of such Lender's accepted offers of Competitive Bid Loans,
if any) to be made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the Borrower a
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corresponding amount. If any Lender makes available to the Agent such amount on
a date after such Drawdown Date, such Lender shall pay to the Agent on demand an
amount equal to the product of (a) the average computed for the period referred
to in clause (c) below, of the weighted average interest rate paid by the Agent
for federal funds acquired by the Agent during each day included in such period,
TIMES (b) the amount of such Lender 's Commitment Percentage of such Syndicated
Loans (or accepted offers of Competitive Bid Loans, as applicable), TIMES (c) a
fraction, the numerator of which is the number of days that elapse from and
including such Drawdown Date to the date on which the amount of such Lender's
Syndicated Loans or Competitive Bid Loans, as applicable, shall become
immediately available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Lender with respect to any amounts
owing under this Section 2.4.2 shall be PRIMA FACIE evidence of the amount due
and owing to the Agent by such Lender. If the amount of such Lender's Syndicated
Loans or Competitive Bid Loans, as applicable, is not made available to the
Agent by such Lender within three (3) Business Days following such Drawdown
Date, the Agent shall be entitled to recover such amount from the Borrower on
demand, with interest thereon at the rate per annum applicable to the Syndicated
Loans or Competitive Bid Loans, as applicable, made on such Drawdown Date and
the Borrower may take the actions permitted under Section 4.12 hereof to replace
such Lender. Any payment by the Borrower to the Agent of any Syndicated Loans or
Competitive Bid Loans pursuant to this Section 2.4.2 shall be deemed to be a
payment of the Revolving Credit Loans that were to be made by the Lender that
failed to make such Syndicated Loans or Competitive Bid Loans, as applicable.
SECTION 2.5. THE NOTES. (a) The Syndicated Loans shall be evidenced by
separate promissory notes of the Borrower in substantially the form of EXHIBIT
E-1 attached hereto (each a "SYNDICATED NOTE"), dated as of the Closing Date (or
such other date on which a Lender may become a party hereto in accordance with
Section 17) and completed with appropriate insertions. A Syndicated Note shall
be payable to the order of each Lender in a principal amount equal to such
Lender's Commitment Amount or, if less, the outstanding amount of all Syndicated
Loans made by such Lender, PLUS interest accrued thereon, as set forth below.
The Borrower irrevocably authorizes each Lender to make, at or about the time of
the Drawdown Date of any Syndicated Loan or at the time of receipt of any
payment of principal on such Lender's Syndicated Note, an appropriate notation
on the Record attached to such Lender's Syndicated Note reflecting the making of
such Syndicated Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Syndicated Loans set forth on such Lender's 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 Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Syndicated Note to make
payments of principal of or interest on any Syndicated Note when due.
(b) The Competitive Bid Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of EXHIBIT E-2
attached hereto (each a "COMPETITIVE BID NOTE"), dated as of the Closing
Date (or such other date on which a Lender may become a party hereto in
accordance with Section 17) and completed with appropriate insertions. A
Competitive Bid Note shall be payable to the order of each Lender in a
principal amount equal to the Competitive Bid Sublimit or, if less, the
outstanding amount of all Competitive Bid Loans made by such Lender to the
Borrower hereunder, as set forth in Section 2.3 hereof, PLUS interest
accrued thereon, as set forth below. The Borrower irrevocably authorizes
each Lender to make, at or about the time of the Drawdown Date of any
Competitive Bid Loan made by such Lender or at the time of receipt of the
payment of principal of such Competitive Bid Loan, an appropriate notation
on the Record attached to such Lender's Competitive Bid Note reflecting the
making of
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such Competitive Bid Loan and repayments thereof. All such notations shall
constitute PRIMA FACIE evidence of the amount of such Competitive Bid Loans
and the repayments thereof, but the failure to record, or any error in so
recording such amount on such Lender's Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Competitive
Bid Note to make payments of principal or interest on any Competitive Bid
Note when due.
SECTION 2.6. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the
right at any time and from time to time prior to the Maturity Date upon three
(3) Business Days' prior written notice to the Agent to reduce by $5,000,000 or
an integral multiple thereof or terminate entirely the Total Commitment,
whereupon the Commitment Amount of each Lender shall be reduced PRO RATA in
accordance with its Commitment Percentage by the amount specified in such notice
or, as the case may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this Section 2.6, the Agent will notify the
Lenders of the substance thereof. Upon the effective date of any such reduction
or termination, the Borrower shall pay to the Agent for the respective accounts
of the Lenders the full amount of the Facility Fee then accrued on the amount of
the reduction. No reduction or termination of the Total Commitment may be
reinstated.
SECTION 2.7. MATURITY AND OTHER MANDATORY REPAYMENTS OF REVOLVING CREDIT
LOANS. The Borrower promises to pay on the Maturity Date, and there shall become
absolutely due and payable on the Maturity Date, all of the Revolving Credit
Loans outstanding to the Borrower on such date, together with any and all
accrued and unpaid interest thereon. If at any time the sum, without
duplication, of (a) the outstanding aggregate principal amount of the Revolving
Credit Loans PLUS (b) the outstanding aggregate principal amount of Swing Line
Loans PLUS (c) the Maximum Drawing Amount PLUS (d) all Unpaid Reimbursement
Obligations exceeds the Total Commitment, then the Borrower shall immediately
pay the amount of such excess to the Agent for application to the Revolving
Credit Loans or Unpaid Reimbursement Obligations for the respective accounts of
the Lenders or to be held as cash collateral for the Reimbursement Obligations.
Each prepayment of Revolving Credit Loans shall be allocated among the Lenders,
in proportion, as nearly as practicable to the respective unpaid principal
amount of each Lender's Syndicated Note, with adjustments to the extent
practicable to equalize any prior payments or repayments not exactly in
proportion, and if no Syndicated Loans are outstanding, to the Competitive Bid
Loans, in proportion, as nearly as practicable, to the unpaid principal amount
of each Lender's Competitive Bid Note.
SECTION 2.8. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower
shall have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, PROVIDED that any full or partial repayment of the outstanding amount
of any Eurodollar Rate Loans or Competitive Bid Loan pursuant to this Section
2.8 may be made only on the last day of the Interest Period relating thereto
unless the Borrower pays each Lender, or, in the case of a Competitive Bid Loan,
the applicable Lender, in accordance with Section 4.10, the costs and expenses
incurred by such Lender as a result of the repayment of such Eurodollar Rate
Loan or, as the case may be, Competitive Bid Loan on a day other than the last
day of the Interest Period relating thereto. The Borrower shall give the Agent,
prior written notice no later than 1:00 p.m., Boston time, on the date of any
proposed repayment pursuant to this Section 2.8 of Base Rate Loans, and no later
than 1:00 p.m., Boston time, three (3) Business Days' prior to any proposed
repayment pursuant to this Section 2.8 of Eurodollar Rate Loans and Competitive
Bid Loans, in each case specifying the proposed date of repayment of such
Revolving Credit Loans and, the principal amount to be repaid. Each such partial
repayment of the Revolving Credit Loans shall be in an integral multiple of
$5,000,000, shall be accompanied by the payment of accrued interest on the
principal repaid to the date of repayment and shall be applied, in the
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case of Syndicated Loans, in the absence of instruction by the Borrower, first
to the principal of Base Rate Loans and then to the principal of Eurodollar Rate
Loans and, in the case of a Competitive Bid Loan, to such Competitive Bid Loan.
Each partial repayment of Syndicated Loans shall be allocated among the Lenders,
in proportion, as nearly as practicable, to the respective unpaid principal
amount of each Lender's applicable Syndicated Note being repaid, with
adjustments to the extent practicable to equalize any prior repayments not
exactly in proportion.
SECTION 2.9. INTEREST ON REVOLVING CREDIT LOANS. (a) During the Revolver
Period, except as otherwise provided in Section 4.11 hereof,
(i) 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;
(ii) 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 rate per annum
equal to the Eurodollar Rate determined for such Interest Period PLUS
the Applicable Margin; and
(iii) each Competitive Bid Loan shall bear interest at the rate
per annum specified in the applicable Competitive Bid Quote with
respect to such Competitive Bid Loan.
(b) The Borrower promises to pay interest on each Revolving Credit
Loan in arrears on each Interest Payment Date applicable with respect
thereto.
SECTION 2.10. CONVERSION OPTIONS.
SECTION 2.10.1. CONVERSION TO DIFFERENT TYPE OF SYNDICATED LOAN. The
Borrower may elect from time to time to convert any outstanding Syndicated Loan
to a Syndicated Loan of another Type, 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.
On the date on which such conversion is being made each Lender shall take such
action as is necessary to transfer its Commitment Percentage of such Syndicated
Loans to its Domestic Lending Office or its Eurodollar Lending Office, as the
case may be. All or any part of outstanding Syndicated Loans of any Type may be
converted into a Syndicated Loan of another Type as provided herein, PROVIDED
that any partial conversion shall be in an aggregate principal amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Conversion
Request relating to the conversion of a Syndicated Loan to a Eurodollar Rate
Loan shall be irrevocable by the Borrower.
SECTION 2.10.2. CONTINUATION OF TYPE OF SYNDICATED LOAN. Any
Syndicated Loan of any Type may be continued as a Syndicated Loan of the same
Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions
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contained in Section 2.10.1 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, than 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 2.10.2 is scheduled to occur.
SECTION 2.10.3. EURODOLLAR RATE LOANS. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of all Eurodollar Rate Loans having the same Interest Period shall not be less
than $2,000,000 or a whole multiple of $1,000,000 in excess thereof. No more
than six (6) Eurodollar Rate Loans having different Interest Periods may be
outstanding at any time.
SECTION 2.11. THE SWING LINE.
SECTION 2.11.1. THE SWING LINE LOANS. Subject to the terms and
conditions hereinafter set forth, upon notice by the Borrower to the Agent in
accordance with this Section 2.11, the Agent agrees to make loans to the
Borrower (the "SWING LINE LOANS") on any Business Day prior to the Maturity Date
in an aggregate principal amount not to exceed the Swing Line Sublimit at any
one time outstanding. Each Swing Line Loan shall be in a minimum amount equal to
$500,000 or an integral multiple thereof. Notwithstanding any other provisions
of this Credit Agreement and in addition to the limit set forth above, at no
time shall the aggregate principal amount of all outstanding Swing Line Loans
exceed the remainder of (a) the Total Commitment then in effect MINUS (b) the
sum of, without duplication, (i) the aggregate principal amount of all
Syndicated Loans outstanding, PLUS (ii) the aggregate amount of Competitive Bid
Loans outstanding at such time, PLUS (iii) the Maximum Drawing Amount, PLUS (iv)
all Unpaid Reimbursement Obligations.
SECTION 2.11.2. NOTICE OF BORROWING. When the Borrower desires the
Agent to make a Swing Line Loan, it shall send to the Agent written notice in
the form of EXHIBIT I hereto (or telephonic notice confirmed in a writing in the
form of EXHIBIT I hereto) of each Swing Line Loan requested hereunder (a " SWING
LINE LOAN Request") not later than 2:00 p.m. (Boston time) on the proposed
Drawdown Date of any Swing Line Loan. Each such Swing Line Loan Request shall
set forth the principal amount of the proposed Swing Line Loan and the Swing
Line Loan Maturity Date relating to such Swing Line Loan, which shall in no
event be later than Maturity Date. Each Swing Line Loan Request shall be
irrevocable and binding on the Borrower and shall obligate the Borrower to
borrow the Swing Line Loan from the Agent on the proposed Drawdown Date thereof.
Upon satisfaction of the applicable conditions set forth in this Credit
Agreement, on the proposed Drawdown Date the Agent shall make the Swing Line
Loan available to the Borrower no later than 3:00 p.m. (Boston time) on the
proposed Drawdown Date by crediting the amount of the Swing Line Loan to the
account specified by the Borrower; PROVIDED that the Agent shall not advance any
Swing Line Loans after it has received notice from any Lender that a Default or
Event of Default has occurred and stating that no new Swing Line Loans are to be
made until such Default or Event of Default has been cured or waived in
accordance with the provisions of this Credit Agreement.
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SECTION 2.11.3. INTEREST ON SWING LINE LOANS. Each Swing Line Loan
shall, except as otherwise provided in Section 4.11 hereof, bear interest from
the Drawdown Date thereof until repaid in full at the rate per annum equal to
the Money Market Rate, which shall be paid on each Interest Payment Date for
Base Rate Loans. The Borrower may elect from time to time that a Swing Line Loan
bear interest at a fixed rate for a period of one week or such other period of
time as may be agreed to by the Agent, in which case, the interest rate on such
Swing Line Loan shall be the fixed rate of interest quoted by the Agent for such
Swing Line Loan for such Interest Period. The Borrower shall give the Agent
notice no later than 12:00 noon on the last day of the Interest Period relating
to a Swing Line Loan that is a Fixed Rate Loan of its intention to continue such
Swing Line Loan as a Fixed Rate Loan. In the event that the Borrower fails to
give such notice, such Swing Line Loan shall, on the last day of such Interest
Period, cease to be a Fixed Rate Loan.
SECTION 2.11.4. REPAYMENT OF SWING LINE LOANS. The Borrower absolutely
and unconditionally promises to pay each outstanding Swing Line Loan on or prior
to the Swing Line Loan Maturity Date relating thereto. Upon notice by the Agent
on any Business Day following the Swing Line Loan Maturity Date relating to each
Swing Line Loan, in the event that the Borrower has not repaid such Swing Line
Loan, each of the Lenders hereby agrees to make Syndicated Loans to the Borrower
constituting Base Rate Loans, on the next succeeding Business Day following such
notice, in an amount equal to such Lender's Commitment Percentage of the
aggregate amount of all Swing Line Loans outstanding and overdue. The proceeds
thereof shall be applied directly by the Agent to repay outstanding Swing Line
Loans. Each Lender hereby absolutely, unconditionally and irrevocably agrees to
make such Syndicated Loans upon one Business Day's notice as set forth above,
notwithstanding (a) that the amount of such Syndicated Loan may not comply with
the applicable minimums set forth herein, (b) the failure of the Borrower to
meet the applicable conditions set forth herein, (c) the occurrence or
continuance of a Default or an Event of Default hereunder, and (d) the Total
Commitment in effect at such time. In the event that it is impracticable for
such Syndicated Loan to be made for any reason on the date otherwise required
above, then each Lender hereby agrees that it shall forthwith purchase (as of
the date such Syndicated Loan would have been made, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Agent, and the Agent shall sell to each Lender, such
participations in the Swing Line Loans (including all accrued and unpaid
interest thereon) outstanding as shall be necessary to cause the Lender's to
share in such Swing Line Loans PRO RATA based on their respective Commitment
Percentages (without regard to any termination of the Total Commitment
hereunder) by making available to the Agent an amount equal to such Lender's
participation in the Swing Line Loans; PROVIDED that (i) all interest payable on
the Swing Line Loans (other than interest received by the Agent pursuant to
clause (ii)) shall be for the account of the Agent as a funding and
administrative fee until the date as of which the respective participation is
purchased, and (ii) at the time any purchase of such participation is actually
made, the purchasing Lender shall be required to pay the Agent interest on the
principal amount of the participation so purchased for each day from and
including the date such Loan would otherwise have been made until the date of
payment for such participation at the rate of interest then applicable to such
Swing Line Loans during such period. The Borrower shall have the right, at its
election, to repay the outstanding amount of a Swing Line Loan, as a whole or in
part, at any time without penalty or premium, PROVIDED that any full or partial
repayment of the outstanding amount of any Swing Line that is a Fixed Rate Loan
may be made only on the last day of the Interest Period relating thereto unless
the Borrower pays, in accordance with Section 4.10, to the Agent the costs and
expenses incurred by the Agent as a result of the repayment of such Swing Line
Loan on a day other than the last day of such Interest Period relating thereto.
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SECTION 2.11.5. THE SWING LINE NOTE. The obligation of the Borrower to
repay the Swing Line Loans made pursuant to this Credit Agreement and to pay
interest thereon as set forth in this Agreement shall be evidenced by a
promissory note of the Borrower substantially in the form of EXHIBIT E-3
attached hereto (the "SWING LINE NOTE"), dated the Closing Date and payable to
the order of the Agent in a principal amount stated to be the lesser of (a) the
Swing Line Sublimit and (b) the aggregate principal amount of Swing Line Loans
at any time advanced by the Agent and outstanding hereunder. The Borrower
irrevocably authorizes the Agent to make or cause to be made, at or about the
time of the Drawdown Date of any Swing Line Loan or at the time of receipt of
any payment of principal on the Swing Line Note, an appropriate notation on the
grid attached to such Note or the Agent's records reflecting the making of such
Swing Line Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Swing Line Loans set forth on such grid or such
records shall be PRIMA FACIE evidence of the principal amount thereof owing and
unpaid to the Agent, but the failure to record, or any error in so recording,
any such amount on such Note or such records shall not limit or otherwise affect
the actual amount of the obligations of the Borrower hereunder or under the
Swing Line Note to make payments of principal of or interest on the Swing Line
Note when due.
SECTION 2.12. REQUEST FOR EXTENSION OF MATURITY DATE. The Borrower may, on
one occasion, provided that no Default or Event of Default has occurred and is
continuing, by written notice to the Agent given not less than sixty (60) days
prior to the first anniversary of the Closing Date request that the initial
Maturity Date be extended to the date which is one year after the initial
Maturity Date. The Agent shall notify the Lenders of such request promptly after
receipt, and request each Lender to notify the Agent of its determination to
consent or not to consent to such extension. Each Lender which makes a
determination not to consent to the extension of the initial Maturity Date on or
before the thirtieth day prior to the first anniversary of the Closing Date
shall notify the Agent of such determination by the thirtieth day prior to the
first anniversary of the Closing Date. A Lender's failure to respond within the
foregoing time period shall not be deemed to be a consent by such Lender to the
extension of the Maturity Date. The Borrower may take the actions permitted by
Section 4.12 to replace any Lender that fails to agree to such extension. If all
of the Lenders (including the Replacement Lender, if applicable) consent to the
extension by so notifying the Agent in writing on or before the first
anniversary of the Closing Date, the Maturity Date shall be extended for one
year, and the definition of Maturity Date shall be deemed to reflect such
extension for all purposes hereof.
SECTION 3. LETTERS OF CREDIT.
SECTION 3.1. LETTERS OF CREDIT. Subject to the terms and conditions set
forth in this Credit Agreement, upon written request of the Borrower delivered
to the Issuing Bank and upon the execution and delivery by the Borrower of
Reimbursement Agreements with the Issuing Bank (with a copy to the Agent), the
Issuing Bank shall issue, extend and renew at any time from the Closing Date
until the Maturity Date, and subject to the satisfaction of the conditions
precedent set forth in Sections 9 and 10 hereof, Letters of Credit in such form
as the Borrower and the Issuing Bank may agree for the account of the Borrower
or any of its Subsidiaries, PROVIDED that at no time shall the Maximum Drawing
Amount of all Letters of Credit outstanding exceed $300,000,000 or, if less, the
Total Commitment, and PROVIDED FURTHER that at no time shall the sum of (a) the
aggregate principal amount of all Syndicated Loans outstanding, PLUS (b) the
aggregate principal amount of all Swing Line Loans outstanding, PLUS (c) the
aggregate principal amount of all Competitive Bid Loans outstanding, PLUS (d)
the aggregate Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceed the Total Commitment then in effect. Each written request for the
issuance of a Letter of Credit hereunder shall be received by the
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Issuing Bank at least ten (10) Business Days prior to the proposed date of
issuance, PROVIDED that the Issuing Bank shall use its best efforts to issue
such Letter of Credit within five (5) Business Days following its receipt of any
written request therefor. The expiry dates, amounts and beneficiaries of the
Letters of Credit will be as agreed by the Borrower and the Issuing Bank in the
applicable Reimbursement Agreement. In the event of any conflict between the
terms of this Credit Agreement and such Reimbursement Agreement, the terms of
this Credit Agreement shall control. The Borrower may request, and the Issuing
Bank upon terms and conditions approved by the Borrower shall issue, substitute
Letters of Credit for the Letters of Credit to reflect reductions in the amount
of the Borrower's obligations supported by such Letters of Credit. Each Letter
of Credit issued by the Issuing Bank hereunder shall identify: (i) the dates of
issuance and expiry of such Letter of Credit, (ii) the amount of such Letter of
Credit (which shall be a sum certain), (iii) the beneficiary and account party
of such Letter of Credit, and (iv) the drafts and other documents necessary to
be presented to the Issuing Bank upon drawing thereunder. Each Letter of Credit
issued hereunder shall expire no later than one year after its date of issuance
unless renewed by the Issuing Bank in accordance with the terms of such Letter
of Credit. In no event shall any Letter of Credit issued hereunder expire after
the date that is ten (10) days prior to the Maturity Date. The Issuing Bank
shall notify the Agent on the date of each issuance, amendment, extension,
renewal or drawing of a Letter of Credit, such notice to include details as to
the expiration date, the face amount of such Letter of Credit, the amount drawn
under such Letter of Credit and such other information as the Agent may
reasonably request.
SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. If any draft shall
be presented or other demand for payment shall be made under any Letter of
Credit, the Issuing Bank shall notify the Borrower of the date and amount of the
draft presented or demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. Upon the payment by the
Issuing Bank in respect of each drawing under a Letter of Credit, the Borrower
shall immediately pay the Issuing Bank the amount of such drawing (it being
understood that the Borrower may, subject to the conditions set forth herein,
make such payment with the proceeds of a Syndicated Loan requested pursuant to
Section 2.2).
SECTION 3.3. LETTER OF CREDIT LOAN OBLIGATIONS ABSOLUTE. (a) The
obligations of the Borrower to repay the Issuing Bank and the Banks as provided
hereunder in respect of drawings under Letters of Credit shall rank PARI PASSU
with the obligations of the Borrower to repay the Loans hereunder, and shall be
absolute and unconditional under any and all circumstances and irrespective of
the occurrence of any Default or Event of Default. Without limiting the
generality of the foregoing, the Borrower's obligation to repay the Borrower's
obligations in respect of drawings under Letters of Credit, or any renewals or
extensions thereof, shall not be subject to any defense based on the
non-application or misapplication by the beneficiary of the proceeds of any such
payment or the legality, validity, regularity or enforceability of the Letter of
Credit, or any renewal or extension thereof, or any other document whatsoever.
Subject to the limitations of the following sentence and of clause (b) below,
the Issuing Bank may accept or pay any draft presented to it under any Letter of
Credit, or any renewal or extension thereof, regardless of when drawn or made
and whether or not negotiated, if such draft, accompanying certificate or
documents and any transmittal advice are presented on or before the expiry date
of the Letter of Credit, or the renewal or extension thereof then in effect. The
responsibility of the Issuing Bank and its correspondents to the Borrower and
the Lenders shall be only to determine that the documents (including each draft)
delivered under each Letter of Credit in connection with such presentment shall
be in conformity in all material respects with such Letter of Credit.
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(b) The Issuing Bank, upon receipt of any draft drawn under a Letter
of Credit, shall promptly examine such draft and any accompanying
certificate or other document in accordance with this Section 3 and with
its customary procedures for conformity to the requirements of such Letter
of Credit. Any action, inaction or omission on the part of the Issuing Bank
or any of its correspondents under or in connection with any Letter of
Credit, or any renewal or extension thereof, or the related instruments,
documents or property, if in good faith and in conformity with such laws,
regulations or customs as are applicable and the terms of this Section 3.3,
shall be binding upon the Borrower and shall not place the Issuing Bank or
any of its correspondents under any liability to the Borrower, in the
absence of gross negligence or willful misconduct by the Issuing Bank or
its correspondents. The Issuing Bank's rights, powers, privileges and
immunities specified in or arising under this Credit Agreement are in
addition to any heretofore or at any time hereafter otherwise created or
arising, whether by statute or rule of law or contract. All Letters of
Credit issued hereunder will, except to the extent otherwise expressly
provided hereunder, be governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500, and any subsequent revisions thereof (the "UNIFORM
CUSTOMS") or, in the case of a standby letter of credit, either Uniform
Customs or the International Standby Practices (ISP98), International
Chamber of Commerce Publication No. 590 or any successor code of standby
Letter of Credit practices among banks adopted by the Issuing Bank in the
ordinary course of business as a standby letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
SECTION 3.4. OBLIGATIONS OF THE LENDERS. (a) Each Lender and the Borrower
hereby acknowledge that each Letter of Credit issued by the Issuing Bank
pursuant to this Credit Agreement is issued by the Issuing Bank on behalf of all
of the Lenders. In the event that the Issuing Bank is not reimbursed on the date
of a drawing under a Letter of Credit, each Lender (other than the Issuing Bank)
absolutely, unconditionally and irrevocably agrees to reimburse the Issuing Bank
in an amount equal to such Lender's Commitment Percentage of such Unpaid
Reimbursement Obligation and to be responsible for its Commitment Percentage of
all liabilities incurred by the Issuing Bank in respect of each Letter of Credit
opened or extended by the Issuing Bank for the account of the Borrower pursuant
to this Credit Agreement. In the event that for any reason (including without
limitation as a result of the commencement of any proceedings under any
bankruptcy, reorganization, insolvency or other similar law with respect to the
Borrower) it is impracticable for any Lender to reimburse the Issuing Bank in an
amount equal to such Lender's Commitment Percentage of any drawing under any
Letter of Credit, then each such Lender agrees that at the option of the Issuing
Bank it shall purchase a participation in, or take an assignment from the
Issuing Bank of, the Borrower's obligation to repay the Issuing Bank in respect
of such drawing under such Letter of Credit in an amount equal to such Lender's
Commitment Percentage of such Unpaid Reimbursement Obligation. The obligations
of the Lender hereunder are several and the failure of any Lender to fulfill its
obligations shall not result in any Lender becoming obligated to advance more
than its Commitment Percentage of such Unpaid Reimbursement Obligation.
(b) Each Lender agrees with the Issuing Bank and the other Lenders
(other than the Issuing Bank) that its obligations to provide to the
Issuing Bank its Commitment Percentage of the amount of any Unpaid
Reimbursement Obligation shall be absolute, irrevocable and unconditional
and further agrees that such obligations shall not be affected in any way
by any intervening circumstances occurring before or after the making of
such payment by the Issuing Bank pursuant to any Letter of Credit,
including without limitation:
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(i) any modification or amendment of, or any consent, waiver,
release or forbearance with respect to, any of the terms of this
Credit Agreement or any other instrument or document referred to
herein;
(ii) any other act or omission to act of any kind by the Issuing
Bank;
(iii) the existence of any Default or Event of Default; or
(iv) any change of any kind whatsoever in the financial position
or creditworthiness of the Borrower or any of its Subsidiaries or any
other Person.
SECTION 3.5. LETTER OF CREDIT FEE. The Borrower shall, on the first day of
each calendar quarter for the immediately preceding calendar quarter, pay to the
Issuing Bank a fee (the "LETTER OF CREDIT FEE") for each Letter of Credit
issued, extended or renewed during such calendar quarter by the Issuing Bank at
a rate per annum equal to (a) with respect to each standby Letter of Credit, the
Applicable Margin with respect to Eurodollar Rate Loans in effect from time to
time and (b) with respect to documentary Letters of Credit, one-half (1/2) the
Applicable Margin with respect to Eurodollar Rate Loans in effect from time to
time, in each case, on the Maximum Drawing Amount of such Letter of Credit for
the period such Letter of Credit is outstanding. The Issuing Bank shall, in
turn, remit to each Lender (including Fleet) such Lender's Commitment Percentage
of the Letter of Credit Fee. In addition, in respect of each Letter of Credit,
the Borrower shall pay the Issuing Bank for its own account (i) quarterly in
arrears on the last day of each calendar quarter, a fronting fee equal to
one-tenth of one percent (0.10%) per annum on the Maximum Drawing Amount of such
Letter of Credit for the period such Letter of Credit is outstanding, and, (ii)
at such other time or times as such charges are customarily made by the Issuing
Bank, the Issuing Bank's customary issuance, amendment, negotiation or document
examination and other administrative fees as in effect from time to time.
SECTION 4. CERTAIN GENERAL PROVISIONS; FEES.
SECTION 4.1. 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 April 26, 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 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 4.2. OTHER FEES.
SECTION 4.2.1. FACILITY FEE. During the Revolver Period, the Borrower
agrees to pay to the Agent for the accounts of the Lenders in accordance with
their respective Commitment Percentages a facility fee (the "FACILITY FEE"),
which shall be calculated for each day at a per annum rate as set forth in the
definition of Applicable Margin with respect to the Facility Fee in effect at
such time on the Total Commitment. 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 Closing Date, with a
final payment on the Maturity Date or any earlier date on which the Total
Commitment shall terminate.
SECTION 4.2.2. UTILIZATION FEE. During the Revolver Period, for any
day on which the outstanding principal amount of Loans exceeds an amount equal
to thirty-three percent (33%) of
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the Total Commitment, the Borrower agrees to pay to the Agent for the accounts
of the Lenders in accordance with their respective Commitment Percentages a
utilization fee (the "UTILIZATION FEE"), which shall be calculated for each day
at a per annum rate as set forth in the definition of Applicable Margin with
respect to the Utilization Fee in effect at such time on the outstanding
principal amount of the Loans. The Utilization 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 Closing Date, with a final
payment on the Maturity Date or any earlier date on which the Total Commitment
shall terminate.
SECTION 4.3. FUNDS FOR PAYMENTS.
SECTION 4.3.1. PAYMENTS TO AGENT. All payments of principal, interest,
Facility Fees, Utilization Fees, Letter of Credit Fees 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 4.3.2. 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 4.3.3
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 4.3.3. 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-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
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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 4.4. COMPUTATIONS. All computations of interest on Base Rate Loans,
Swing Line Loans, Facility Fees and other fees shall be based on a 365-day or
366-day year, as applicable, and all computations of interest on Eurodollar Rate
Loans and Competitive Bid Loans 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 Eurodollar Rate
Loans, 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 4.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to
the commencement of any Interest Period relating to any Eurodollar Rate Loan,
the Agent 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
Loan Request or Conversion Request with respect to Eurodollar Rate Loans shall
be automatically withdrawn and shall be deemed a request for Base Rate Loans,
(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 Eurodollar Rate Loans 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 4.6. 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 Eurodollar Rate Loans, 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 Eurodollar Rate Loans or convert Loans of
another Type to
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Eurodollar Rate Loans shall forthwith be suspended and such Lender's Loans then
outstanding as Eurodollar Rate Loans, if any, shall be converted automatically
to Base Rate Loans on the last day of each Interest Period applicable to such
Eurodollar Rate Loans 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 4.6, including any interest or fees
payable by such Lender to lenders of funds obtained by it in order to make or
maintain its Eurodollar Loans hereunder.
SECTION 4.7. 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, such Lender's Commitment, the
Loans or the Letters of Credit (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 any Loans 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, or letters of credit
issued by, or commitments of an office of 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, the Loans, the Letters of Credit, such Lender's Commitment, or
any class of loans, letters of credit or commitments of which any of the
Loans or such Lender's Commitment forms a part,
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 any of the Loans, the
Letters of Credit or such Lender's Commitment, or
(ii) to reduce the amount of principal, interest, or other amount
payable to such Lender or the Agent hereunder on account of such
Lender's Commitment, or any of the Loans or Letters of Credit, 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
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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 4.8. 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 jurisdiction has the effect of reducing the return on
such Lender's or the Agent's commitment with respect to any Loans or Letters of
Credit 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 4.9
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 4.9. CERTIFICATE. A certificate setting forth any additional
amounts payable pursuant to Sections 4.7 or 4.8 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 4.7 or 4.8 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 4.12 hereof to replace such
Lender.
SECTION 4.10. 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, Competitive Bid Loans or Swing Line Loans which are Fixed
Loan Rate Loans 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
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obtained by it in order to maintain its Eurodollar Rate Loans, Competitive Bid
Loans or such Swing Line Loans, (b) default by the Borrower in making a
borrowing or conversion after the Borrower has given (or is deemed to have
given) a Loan Request or a Conversion Request relating thereto in accordance
with Sections 2.2 or 2.10 hereof, or (c) the making of any payment of a
Eurodollar Rate Loan, Competitive Bid Loan or Swing Line Loan which is a Fixed
Rate Loan or the making of any conversion of any such Loan to a Base Rate Loan
on a day that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain any such Loans.
SECTION 4.11. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans 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 the fifth calendar day following
the day 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 4.12. REPLACEMENT OF INDIVIDUAL LENDERS. Upon the happening of any
of the events set forth in Sections 2.4.2, 2.12, 4.6, 4.7 or 4.8, 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) prepay in full all Loans
and other obligations owing by the Borrower to each affected Lender (a
"SUBSTITUTED LENDER"), together with all amounts payable by the Borrower under
Section 4.10 hereof with respect to such prepayment, and terminate the
Commitment(s) of such Lender(s) 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
4.12 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
Commitment Amount in the amount of the Substituted Lender's Commitment
Amount;
(b) the Borrower shall have given appropriate notice of any prepayment
under this Section 4.12 as required by Section 4.7 and subject to all other
provisions of this Credit Agreement; and
(c) simultaneously with any prepayment of all Loans and other
obligations owing by the Borrower to a Substituted Lender under this
Section 4.12, the Substituted Lender shall have assigned, pursuant to
Section 17 hereof of this Credit Agreement the Commitment of such
Substituted Lender to the Replacement Lender and such Replacement Lender
shall have become a Lender under this Credit Agreement, having a Commitment
Amount in the amount of such Substituted Lender's Commitment Amount and
such Replacement Lender shall have simultaneously funded all such Loans
prepaid hereunder.
SECTION 4.13. 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 F hereto. The Borrower may cause additional
Subsidiaries of the Borrower to become Guarantors hereunder by causing such
Subsidiary or Subsidiaries to agree to be bound by the
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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 and (c) the Borrower shall have
delivered to the Agent and the Lenders on the date of such 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. The Borrower shall deliver to the Lenders an updated SCHEDULE 2 upon
the release or addition of any Guarantor as provided in this Section 4.13.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the Agent as
follows:
SECTION 5.1. CORPORATE AUTHORITY.
SECTION 5.1.1. 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 5.1.2. 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 5.1.3. 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
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the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
SECTION 5.2. 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 5.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE
5.3 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 5.4. 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 May
4, 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 5.5. 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 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 7.4 hereof.
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SECTION 5.6. 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 5.7. LITIGATION. Except as set forth in SCHEDULE 5.7 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 5.8. 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 5.9. 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 5.9 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 5.10. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
SECTION 5.11. 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 5.12. EMPLOYEE BENEFIT PLANS.
SECTION 5.12.1. 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
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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 5.12.2. 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 5.12.3. 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 5.12 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.
SECTION 5.12.4. 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 5.13. REGULATIONS U AND X, ETC. The proceeds of the Revolving
Credit Loans shall be used for the purposes described in Section 6.12 hereof. No
portion of any Revolving Credit 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 5.14. 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:
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(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 5.14 hereto;
(c) except as set forth on SCHEDULE 5.14 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 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 5.15. SUBSIDIARIES, ETC. As of the Closing Date, other than those
Subsidiaries of the Borrower described on SCHEDULE 5.15(a) attached hereto, the
Borrower has no other Subsidiaries. As of the Closing Date, except as set forth
on SCHEDULE 5.15(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 5.15(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
5.15(a), SCHEDULE 5.15(b) or SCHEDULE 5.15(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.
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SECTION 6. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Note or Letter
of Credit is outstanding or any Lender has any obligation to make any Loans or
the Issuing Bank has any obligation to issue, extend or renew any Letters of
Credit:
SECTION 6.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans, the Facility Fee, the
Utilization Fee, the Letter of Credit Fees, 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 6.2. 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 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 6.3. 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 6.4. 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 C attached hereto (a "COMPLIANCE CERTIFICATE") and
setting forth in reasonable detail computations evidencing compliance with
the covenants contained in Section 8 hereof, a calculation of the Obligor
Group Requirement and (if applicable) reconciliations to reflect changes in
GAAP since the Balance Sheet Date;
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(d) from time to time such other financial data and information as the
Agent or any Lender may reasonably request; and
(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 25 of this Credit Agreement.
SECTION 6.5. 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 6.6. 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 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 6.6
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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 6.7. 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 6.8. 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 6.9. 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 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 6.10. 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
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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 6.11. 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 6.12. USE OF PROCEEDS. The Borrower will use the proceeds of the
Revolving Credit Loans and the Letters of Credit solely for the repayment of all
amounts under the Existing Credit Agreements and other existing Indebtedness
(unless repayment or prepayment thereof is otherwise prohibited hereunder), and
for working capital and general corporate purposes, including, without
limitation, for the acquisition of assets and or Capital Stock of Persons in the
same line of business as the Borrower or any Subsidiary of the Borrower and for
share repurchases, in each case, to the extent permitted under this Credit
Agreement.
SECTION 6.13. 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 6.14. 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 7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Note or Letter
of Credit is outstanding or any Lender has any obligation to make any Loans or
the Issuing Bank has any obligation to issue, extend or renew any Letter of
Credit:
SECTION 7.1. 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;
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(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 6.8 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;
(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 7.1 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 7.2(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 7.1(n) shall not, at any time, exceed
the fair market value of the Real Estate securing such Indebtedness;
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(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
7.3(m) hereof; and
(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 7.1 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
7.1(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 7.2. 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
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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;
(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
7.2 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
7.1(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;
(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;
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(xii) liens in respect of the interests of lessors under
Capitalized Leases; and
(xiii) liens on Real Estate securing Indebtedness permitted under
Section 7.1(n) hereof.
SECTION 7.3. 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 Xxxxx'x, 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 Xxxxx'x, and not less than "A 2" if rated by S&P;
(d) Investments existing on the Closing Date and listed on SCHEDULE
7.3 attached hereto;
(e) Investments with respect to Indebtedness permitted by Section
7.1(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
Xxxxx'x, and not less than A- if rated by S&P;
(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;
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(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 7.6 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 7.3(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 7.4.
SECTION 7.4. 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 7.5. 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 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 7.6. 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 7.3(j) or Section 7.3(l)
hereof); enter into any joint venture or partnerships (except to the extent
permitted under Section 7.3 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
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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 7.7. 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,
(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 (iii) the Borrower shall, if an Event of Default exists or
would result from such sale, prepay the Revolving Credit Loans by an amount
equal to (A) 50% of the amount by which the aggregate net sale proceeds of
all assets sold pursuant to this clause (b) exceeds $20,000,000 but is less
than or equal to $50,000,000 PLUS (B) 100% of the amount by which the
aggregate net sale proceeds of all assets sold pursuant to this clause (b)
exceeds $50,000,000; and
(c) the sale of accounts receivable of the Borrower and/or its
Subsidiaries pursuant to the Securitization.
SECTION 7.8. SUBORDINATED DEBT. The Borrower will not effect or permit any
change in or amendment to any document or instrument pertaining to the
subordination, 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 8. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Note or Letter
of Credit is outstanding or any Lender has any obligation to make any Loans or
the Issuing Bank has any obligation to issue, extend or renew any Letter of
Credit:
SECTION 8.1. 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
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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 8.2. 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 9. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Loans and the Issuing
Bank to issue the initial Letter of Credit (if issued on the Closing Date) shall
be subject to the satisfaction of the following conditions precedent:
SECTION 9.1. 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 9.2. 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 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 9.3. 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 9.4. 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 Loan Requests, Conversion Requests,
Swing Line Loan Requests and Notices of Competitive Bid Borrowing; and (c) to
give notices and to take other action on its behalf under the Loan Documents.
SECTION 9.5. 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)
Xxxx X. XxxXxxxxxx, Esq., general counsel to the Borrower and the Guarantors and
(b) Xxxx & Xxxx LLP, special counsel to the Borrower and the Guarantors.
SECTION 9.6. 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
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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 9.7. TERMINATION OF EXISTING CREDIT AGREEMENTS. The Borrower shall
have repaid all principal, interest and fees owing, and shall have terminated
the commitments under, the Existing Credit Agreements and the Agent shall have
received evidence thereof in form and substance satisfactory to it.
SECTION 9.8. 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 May
2002.
SECTION 9.9. 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 9.10. 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 9.11. 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.
SECTION 10. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan and the Issuing Bank to
issue, extend or renew any Letter of Credit, in each case whether on or after
the Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
SECTION 10.1. 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 such Loan or the issuance, renewal or
extension of such Letter of Credit, 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 10.2. 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 such Loan or
for the Issuing Bank to issue, extend or renew such Letter of Credit.
SECTION 10.3. 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
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purpose of compliance with any applicable regulations of the Comptroller of the
Currency or the Board of Governors of the Federal Reserve System.
SECTION 10.4. 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 11. EVENTS OF DEFAULT; ACCELERATION; ETC.
SECTION 11.1. 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 Loans
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 Loans, the Facility Fee, the Utilization Fees, 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 6.4, 6.5, 6.10, 7 or 8 hereof, or (ii)
shall fail to comply with its covenant contained in Section 6.6 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 11.1) for thirty (30) days after written notice of such
failure has been given to the Borrower by the Agent;
(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
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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 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;
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(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 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
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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 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,
the Notes, the Letters of Credit and the other Loan Documents and all
Reimbursement Obligations to be, 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 Sections 11.1(g) or
11.1(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 11.2. TERMINATION OF COMMITMENTS. If any one or more of the Events
of Default specified in Sections 11.1(g) or 11.1(h) hereof shall occur, any
unused portion of the credit hereunder shall forthwith terminate and each of the
Lenders shall be relieved of all further obligations to make Loans to the
Borrower and the Issuing Bank shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other Event of Default shall
have occurred and be continuing, the Agent may and, upon the request of the
Required Lenders, shall, by notice to the Borrower, terminate the unused portion
of the credit hereunder, and upon such notice being given such unused portion of
the credit hereunder shall terminate immediately and each of the Lenders shall
be relieved of all further obligations to make Loans and the Issuing Bank shall
be relieved of all further obligations to issue, extend or renew Letters of
Credit. No termination of the credit hereunder shall relieve the Borrower of any
of the Obligations.
SECTION 11.3. 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 Loans pursuant to Section 11.1 hereof, each
Lender, if owed any amount with respect to the Loans or Letters of Credit 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 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.
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SECTION 12. 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 Notes held by such Lender or constituting Reimbursement Obligations owed
to 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 Notes held by such Lender or
constituting Reimbursement Obligations owed to 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 Notes held by, or constituting Reimbursement Obligations owed
to, 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 to the payment of
the Note or 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 Notes
held by, and Reimbursement Obligations owed to, 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 Notes held by it or Reimbursement Obligations owed 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 13. THE AGENT.
SECTION 13.1. 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
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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 13.2. 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 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 13.3. 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 13.4. NO REPRESENTATIONS.
SECTION 13.4.1. GENERAL. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the 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
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 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 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 13.4.2. CLOSING DOCUMENTATION, ETC. For purposes of
determining compliance with the conditions set forth in Section 9, 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
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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.
SECTION 13.5. PAYMENTS.
SECTION 13.5.1. 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 13.5.2. DISTRIBUTION BY AGENT. If in the opinion of the Agent
the distribution of any amount received by it in such capacity hereunder, under
the 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 13.5.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan Documents,
any Lender that fails (a) to make available to the Agent its PRO RATA share of
any Loan, to make available to the Issuing Bank its PRO RATA share of each
drawing under any Letter of Credit or to participate in any Swing Line Loan or
(b) to comply with the provisions of Section 12 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 outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Lenders for application to, and
reduction of, their respective PRO RATA shares of all outstanding Syndicated
Loans. The Delinquent Lender hereby authorizes the Agent to distribute such
payments to the nondelinquent Lenders in proportion to their respective PRO RATA
shares of all outstanding Syndicated Loans. 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 all outstanding Syndicated Loans of the
nondelinquent Lenders, the Lenders' respective PRO RATA shares of all
outstanding Syndicated Loans have returned to those in effect immediately prior
to such delinquency and without giving effect to the nonpayment causing such
delinquency.
SECTION 13.6. HOLDERS OF NOTES. The Agent may deem and treat the payee of
any 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 13.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether 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 15 hereof), and liabilities of every nature and
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character arising out of or related to this Credit Agreement, the Notes, the
Letters of Credit 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 13.8. 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 Commitment and the Loans made by it, and as the holder of any of the
Notes, as it would have were it not also the Agent. None of the Co-Documentation
Agents or the Co-Syndication Agents shall have any obligation, liability,
responsibility or duty under this Credit Agreement other than as a Lender
hereunder.
SECTION 13.9. 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 13.10. 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 13.10 it shall promptly
notify the other Lenders and the Borrower of the existence of such Default or
Event of Default.
SECTION 14. 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 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
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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 15 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 14 shall survive payment or satisfaction of all other Obligations.
SECTION 15. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agents, 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 any of the Loans or the
Letters of Credit, (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 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 15 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 15 shall survive payment
or satisfaction in full of all other Obligations.
SECTION 16. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the 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
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made by any of them, and shall survive the making by the Lenders of any of the
Loans or the issuance of any Letters of Credit, as herein contemplated, and
shall continue in full force and effect so long as any amount due under this
Credit Agreement or the Notes or any Letter of Credit or the other Loan
Documents remains outstanding or any Lender has any obligation to make any Loans
or the Issuing Bank has any obligation to issue, renew or extend Letters of
Credit, 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 17. ASSIGNMENT AND PARTICIPATION.
SECTION 17.1. 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 Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it and the Notes held by it and
its risk associated with Letters of Credit); PROVIDED that (a) except in the
case of an assignment by a Lender to the financial institution acquiring such
Lender in conjunction with the sale or merger of such Lender, each of the Agent
and 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 Commitment and the Loans 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 H attached hereto (an "ASSIGNMENT AND ACCEPTANCE"),
together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (i) the assignee 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 (ii) 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 17.3 hereof, be released from its
obligations under this Credit Agreement.
SECTION 17.2. 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
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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 5.4 and 6.4 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; (h) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; and (i) such
assignee acknowledges that it has made satisfactory arrangements with the
assigning Lender with respect to its PRO RATA share of Letter of Credit Fees in
respect of outstanding Letters of Credit.
SECTION 17.3. 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 Commitment
Percentage of, and principal amount of the Loans 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 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
17.7 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 17.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each 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 Note, a new 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 Note to the order
of the assigning Lender in an amount equal to the amount retained by it
hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be
substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
SECTION 17.5. 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
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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 any Loans, (ii) extend the term or increase the amount of
the Commitment of such Lender as it relates to such participant, (iii) reduce
the amount of any Facility Fees, Utilization Fees or Letter of Credit Fees to
which such participant is entitled, (iv) extend any regularly scheduled payment
date for principal or interest or (v) release any collateral for the
Obligations.
SECTION 17.6. 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 Sections 11.1 or 11.2
hereof, 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
such assignee Lender's interest in any of the Loans. If any Lender sells a
participating interest in any of the Loans 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 Sections 11.1 or 11.2 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 Loans to the extent of such participation.
SECTION 17.7. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender
shall retain its rights to be indemnified pursuant to Section 15 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 17 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 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 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 17.3
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 Administrative
Agent hereunder.
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SECTION 17.8. 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 18. 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 Notes or any Reimbursement Agreements 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,
telecopy, facsimile or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower, at 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000,
Attention: Mr. Xxxxxxx Xxxxxxx, 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 Xxxx X. XxxXxxxxxx, Esq., Senior Vice President and
General Counsel, Staples, Inc., 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000;
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX, Attention: Xxxxx X. X. 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 19. 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 18 HEREOF. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
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TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT.
SECTION 20. HEADINGS.
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
SECTION 21. 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 22. 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 24 hereof.
SECTION 23. 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, the Notes 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 24. 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
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the Required Lenders. Notwithstanding the foregoing, the rate of interest on the
Notes and the amount of any Facility Fees or Utilization Fees may not be reduced
or forgiven, the term of the Notes may not be extended, the regularly scheduled
payment date for principal or interest on the Notes, the Reimbursement
Obligations or any Facility Fees or Utilization Fees may not be postponed or
extended, and the Commitment Amounts of a Lender may not be increased, in each
case without the written consent of the Borrower and the written consent of each
Lender directly affected thereby; the principal amount of any Loans may not be
forgiven without the written consent of each Lender directly affected thereby;
this Section 24 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 4.13 hereof) without the written consent of all the Lenders; the
amount of the Agent Fees payablE for the account of the Agent, any provision
applicable to the Swing Line Loans and the Agent in its capacity as lender of
the Swing Line Loans, and Section 13 hereof may not be amended without the
written consent of the Agent; anD no provision applicable to the Issuing Bank
may be amended without the written consent of the Issuing Bank. 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 25. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SECTION 25.1. 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 25 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 25), (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 25), (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 25, (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 may be, agrees in a writing enforceable
by the Borrower to be bound by the provisions of this Section 25 or (i) with the
consent of the Borrower.
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SECTION 25.2. 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 25.1(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 25.3. 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 25 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 any of
the Loans or Reimbursement Obligations from any Lender.
SECTION 26. 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:________________________________
Name:
Title:
FLEET NATIONAL BANK, individually and
as Agent
By:________________________________
Name:
Title:
CITICORP USA, INC., individually and as
Co-Syndication Agent
By:________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Co-Syndication Agent
By:________________________________
Name:
Title:
HSBC BANK USA, individually and as
Co-Documentation Agent
By:________________________________
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Co-Documentation Agent
By:________________________________
Name:
Title:
SOVEREIGN BANK
By:________________________________
Name:
Title:
U.S BANK NATIONAL ASSOCIATION
By:________________________________
Name:
Title:
BANK ONE, NA
(Main Office Chicago)
By:________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:________________________________
Name:
Title:
THE BANK OF NEW YORK
By:________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:________________________________
Name:
Title:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By:________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
Name:
Title:
ALLIED IRISH BANKS, PLC
By:________________________________
Name:
Title:
NATIONAL CITY BANK
By:________________________________
Name:
Title:
KBC BANK NV
By:________________________________
Name:
Title:
