<PAGE>
Exhibit 10.99
EXECUTION COUNTERPART
************************************************************
UNITED STATIONERS SUPPLY CO.
and
UNITED STATIONERS INC.
------------------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 29, 2000
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
as Advisor, Lead Arranger and Book Manager
************************************************************
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters...............................1
1.01 Certain Defined Terms............................................1
1.02 Accounting Terms and Determinations.............................25
1.03 Classes and Types of Loans......................................25
Section 2. Commitments, Loans and Prepayments..............................26
2.01 Loans...........................................................26
2.02 Borrowings......................................................27
2.03 Letters of Credit...............................................28
2.04 Changes of Commitments..........................................33
2.05 Commitment Fee..................................................33
2.06 Lending Offices.................................................34
2.07 Several Obligations; Remedies Independent.......................34
2.08 Evidence of Debt; Registered Loans..............................35
2.09 Optional Prepayments and Conversions or Continuations of Loan...35
2.10 Mandatory Prepayments and Reductions of Commitments.............36
Section 3. Payments of Principal and Interest..............................39
3.01 Repayment of Loans..............................................39
3.02 Interest........................................................39
Section 4. Payments; Pro Rata Treatment; Computations; Etc.................40
4.01 Payments........................................................40
4.02 Pro Rata Treatment..............................................41
4.03 Computations....................................................41
4.04 Minimum Amounts.................................................41
4.05 Certain Notices.................................................42
4.06 Non-Receipt of Funds by the Administrative Agent................43
4.07 Sharing of Payments, Etc........................................44
Section 5. Yield Protection, Etc...........................................45
5.01 Additional Costs................................................45
5.02 Limitation on Types of Loans....................................47
5.03 Illegality......................................................47
5.04 Treatment of Affected Loans.....................................48
5.05 Compensation....................................................48
<PAGE>
5.06 Additional Costs in Respect of Letters of Credit................49
5.07 U.S. Taxes......................................................49
5.08 Replacement of Lenders..........................................51
Section 6. Guarantee.......................................................52
6.01 The Guarantee...................................................52
6.02 Obligations Unconditional.......................................52
6.03 Reinstatement...................................................53
6.04 Subrogation.....................................................53
6.05 Remedies........................................................53
6.06 Continuing Guarantee............................................53
Section 7. Conditions Precedent............................................54
7.01 Effectiveness...................................................54
7.02 Initial and Subsequent Extensions of Credit.....................56
Section 8. Representations and Warranties..................................56
8.01 Corporate Existence.............................................56
8.02 Financial Condition.............................................57
8.03 Litigation......................................................57
8.04 No Breach.......................................................57
8.05 Action..........................................................57
8.06 Approvals.......................................................58
8.07 Use of Credit...................................................58
8.08 ERISA...........................................................58
8.09 Taxes...........................................................58
8.10 Investment Company Act..........................................59
8.11 Public Utility Holding Company Act..............................59
8.12 Material Agreements and Liens...................................59
8.13 Environmental Matters...........................................59
8.14 Capitalization..................................................61
8.15 Subsidiaries, Etc...............................................61
8.16 Title to Assets.................................................61
8.17 True and Complete Disclosure....................................61
8.18 Real Property...................................................62
8.19 Security Documents..............................................62
Section 9. Covenants of the Obligors.......................................62
9.01 Financial Statements, Etc.......................................62
9.02 Litigation......................................................65
9.03 Existence, Etc..................................................66
9.04 Insurance.......................................................66
9.05 Prohibition of Fundamental Changes..............................67
9.06 Limitation on Liens.............................................69
(ii)
<PAGE>
9.07 Indebtedness....................................................71
9.08 Investments.....................................................72
9.09 Restricted Payments.............................................73
9.10 Net Worth.......................................................73
9.11 Leverage Ratio..................................................74
9.12 Fixed Charges Ratio.............................................74
9.13 Interest Coverage Ratio.........................................74
9.14 Subordinated Indebtedness.......................................74
9.15 Lines of Business...............................................74
9.16 Transactions with Affiliates....................................75
9.17 Use of Proceeds.................................................75
9.18 Modifications of Certain Documents..............................75
9.19 Ownership of the Company........................................75
9.20 Taxes...........................................................76
9.21 Subsidiary Guarantors; Additional Mortgaged Property............76
9.22 Termination of ERISA Plans......................................77
9.23 Limitations on Restrictions.....................................77
9.24 Release of Security Interests...................................77
Section 10. Events of Default...............................................77
Section 11. The Administrative Agent........................................80
11.01 Appointment, Powers and Immunities..............................80
11.02 Reliance by Agent...............................................81
11.03 Defaults........................................................81
11.04 Rights as a Lender..............................................82
11.05 Indemnification.................................................82
11.06 Non-Reliance on Agent and Other Lenders.........................82
11.07 Failure to Act..................................................83
11.08 Resignation or Removal of Administrative Agent..................83
11.09 Consents under Other Credit Documents...........................83
11.10 Collateral Sub-Agents...........................................84
Section 12. Miscellaneous...................................................84
12.01 Waiver..........................................................84
12.02 Notices.........................................................84
12.03 Expenses, Etc...................................................84
12.04 Amendments, Etc.................................................86
12.05 Successors and Assigns..........................................86
12.06 Assignments and Participations..................................86
12.07 Survival........................................................89
12.08 Captions........................................................89
12.09 Counterparts....................................................89
12.10 Governing Law; Submission to Jurisdiction.......................89
(iii)
<PAGE>
12.11 Waiver of Jury Trial............................................90
12.12 Treatment of Certain Information; Confidentiality...............90
ANNEX 1 - Lenders and Commitments
SCHEDULE I - Indebtedness and Liens
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Real Property
SCHEDULE V - Litigation
SCHEDULE VI - Taxes
EXHIBIT A - Form of Security Agreement
EXHIBIT B - Form of Subsidiary Guarantee and Security Agreement
EXHIBIT C - Form of Pledge Agreement
EXHIBIT D - Form of Mortgage
EXHIBIT E-1 - Form of Opinion of General Counsel of the Guarantor
EXHIBIT E-2 - Form of Opinion of Weil, Gotshal & Manges LLP,
special counsel to the Credit Parties
EXHIBIT F - Form of Opinion of Special New York Counsel to Chase
EXHIBIT G - Form of Assignment and Acceptance
EXHIBIT H - Form of Guarantee Assumption Agreement
(iv)
<PAGE>
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 29,
2000 (as amended, restated, modified or supplemented from time to time, this
"Agreement") among: UNITED STATIONERS SUPPLY CO., a corporation duly organized
and validly existing under the laws of the State of Illinois (together with its
successors and assigns, the "Company"); UNITED STATIONERS INC., a corporation
duly organized and validly existing under the laws of the State of Delaware
(together with its successors and assigns, the "Guarantor" and, together with
the Company, the "Obligors"); each of the lenders that is a signatory hereto
(together with its successors and assigns in such capacity, a "Lender" and,
collectively with the Swingline Lender referred to below, the "Lenders"); and
THE CHASE MANHATTAN BANK, as Swingline Lender hereunder (in such capacity,
together with its successors and assigns in such capacity, the "Swingline
Lender") and as agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
WHEREAS, the Company, the Guarantor, the Administrative Agent, and
certain of the Lenders are parties to the Second Amended and Restated Credit
Agreement dated as of April 3, 1998 (as heretofore amended and supplemented and
in effect immediately prior to the effectiveness of this Agreement, the
"Existing Credit Agreement");
WHEREAS, the parties hereto wish to amend the Existing Credit
Agreement in certain respects to make certain modifications thereto (including
to provide for the making of additional terms loans hereunder for the purposes
specified herein), and to restate the Existing Credit Agreement in its entirety
as so amended, it being the intention of the parties hereto that the loans
outstanding under the Existing Credit Agreement on the Effective Date (as
defined below) shall continue and remain outstanding hereunder and not be repaid
on the Effective Date;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"Accountants" shall have the meaning assigned to such term in
Section 9.01(b) hereof.
"Administrative Agent" shall have the meaning assigned to such term
in the first paragraph hereof.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, in respect of any Person (the "Relevant
Person"), any other Person that directly or indirectly controls, or is under
common control with, or is controlled by,
Credit Agreement
<PAGE>
-2-
the Relevant Person and, if such other Person is an individual, any member of
the immediate family (including parents, spouse, children and siblings) of such
individual and any trust whose principal beneficiary is such individual or one
or more members of such immediate family and any Person who is controlled by any
such member or trust. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise); provided
that, in any event, any Person that owns directly or indirectly securities
having 5% or more of the voting power for the election of directors or other
governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person.
Notwithstanding the foregoing, (a) no individual shall be an Affiliate of any
Relevant Person solely by reason of his or her being a director, officer or
employee of such Relevant Person or any of its Subsidiaries, (b) none of the
Subsidiaries of the Guarantor shall be Affiliates of the Guarantor or of any
other Subsidiary of the Guarantor, (c) the Guarantor shall not be an Affiliate
of any of its Subsidiaries and (d) neither the Administrative Agent nor any
Lender shall be an Affiliate of the Guarantor or of any Subsidiary of the
Guarantor.
"Agreement" shall have the meaning assigned to such term in the
first paragraph hereof.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the lending office designated by such Lender as such on its
Administrative Questionnaire or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Company for such purpose.
"Applicable Margin" shall mean, for any day, with respect to any
Base Rate Loan (including any Swingline Loan) or Eurodollar Loan, as the case
may be, of any Class the applicable rate per annum set forth below under the
caption "Base Rate Spread" or "Eurodollar Spread" with respect to such Class,
respectively, based upon the Leverage Ratio as of the most recent determination
date; provided that until the third Business Day after delivery of the
Guarantor's unaudited consolidated financial statements for the fiscal quarter
ending June 30, 2000 pursuant to Section 9.01(a) hereof, the "Applicable Margin"
shall be the applicable rate per annum set forth below in Category 5:
Credit Agreement
<PAGE>
-3-
===============================================================================
Base Rate Eurodollar
Spread for Spread for Base Rate
Leverage Ratio: Revolving Revolving Spread for Eurodollar
--------------- Credit Loans Credit Loans Tranche Spread for
and Tranche A and Tranche A A-1 Term Tranche A-1
Term Loans Term Loans Loans Term Loans
-------------------------------------------------------------------------------
Category 1
----------
Greater than 4.50 to 1 1.0% 2.25% 1.25% 2.50%
-------------------------------------------------------------------------------
Category 2
----------
Less than or equal 0.75% 2.00% 1.00% 2.25%
to 4.50 to 1 but
greater than 4.00 to 1
-------------------------------------------------------------------------------
Category 3
----------
Less than or equal 0.50% 1.75% .75% 2.00%
to 4.00 to 1 but
greater than 3.50 to 1
-------------------------------------------------------------------------------
Category 4
----------
Less than or equal 0.25% 1.50% .50% 1.75.%
to 3.50 to 1 but
greater than 3.00 to 1
-------------------------------------------------------------------------------
Category 5
----------
Less than or equal 0.00% 1.25% .25% 1.50%
to 3.00 to 1
===============================================================================
For purposes of the foregoing (but subject to the proviso above), (a) the
Leverage Ratio shall be determined as of the end of each fiscal quarter of the
Guarantor's fiscal year based upon the Guarantor's consolidated financial
statements delivered pursuant to Section 9.01(a) or (b) hereof and (b) each
change in the Applicable Margin resulting from a change in the Leverage Ratio
shall be effective during the period commencing on and including the date three
Business Days after delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that (x)
notwithstanding the foregoing, for purposes of calculating the Applicable Margin
at any time prior to the delivery of the compliance certificate required under
the last paragraph of Section 9.01 hereof for the fiscal quarter of the
Guarantor ending June 30, 2000, the Applicable Margin shall be deemed to be in
Category 5 and (y) the Leverage Ratio shall be deemed to be in Category 1 above
(i) at any time that an Event of Default has occurred and is continuing or (ii)
if the Guarantor fails to deliver the consolidated financial statements required
to be delivered by it pursuant to Section 9.01(a) or (b) hereof and/or the
related compliance certificate, during the period from the expiration of the
time for delivery thereof until such consolidated financial statements and
compliance certificate are so delivered.
Credit Agreement
<PAGE>
-4-
"Assignment and Acceptance" shall mean an Assignment and Acceptance
entered into by a Lender and an assignee (with the consent of any Person whose
consent is required by Section 12.06(b) hereof), and accepted by the
Administrative Agent, in the form of Exhibit G hereto or any other form approved
by the Administrative Agent.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans (other than Swingline Loans) that
bear interest at rates based upon the Base Rate.
"Business Day" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, without duplication, for any
period, expenditures (including, without limitation, the aggregate amount of
Capital Lease Obligations incurred during such period) made by the Guarantor or
any of its Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board); and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"Cash Flow" shall mean, for any period, for the Guarantor and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), EBITDA for such period minus Capital Expenditures made
during such period (provided that Capital Lease Obligations shall be deducted
only to the extent of payments actually made during such period).
"Casualty Event" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
Credit Agreement
<PAGE>
-5-
"Change of Control" shall mean (i) the Guarantor shall cease to own
and control, of record and beneficially, 100% of each class of outstanding
capital stock of the Company; (ii) any "person" or "group" (within the meaning
of Section 13(d) and 14(d) of the Exchange Act) other than one or more of the
Permitted Holders, shall become the ultimate "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 30% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Guarantor; (iii) individuals who on the
Effective Date constituted the board of directors of the Guarantor or the
Company (together with any new directors whose election to such board of
directors or whose nomination for election by the shareholders of the Guarantor
or the Company (as the case may be), was either approved by a vote of 66-2/3% of
the directors then in office who were either directors on such date or whose
election or nomination for election was previously so approved) shall cease for
any reason to have a majority of the total voting power of such board of
directors then in office; or (iv) any Person or group other than the Permitted
Holders shall acquire directly or indirectly the power to direct or cause the
direction of the management or policies of the Guarantor, whether through the
ability to exercise voting power, by contract or otherwise. The term "Permitted
Holders" shall mean Randall W. Larrimore, Frederick B. Hegi, Jr., Stephen
Schwarz or Wingate Partners, L.P., a Delaware limited partnership, and
Affiliates thereof.
"Chase" shall mean The Chase Manhattan Bank.
"Class" shall have the meaning assigned to such term in Section 1.03
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Account" shall have the meaning assigned to such term in
Section 4.01 of the Security Agreement.
"Commission" shall mean the Securities and Exchange Commission, or
any regulatory body that succeeds to the functions thereof.
"Commitments" shall mean the Revolving Credit Commitments and the
Term Loan Commitments.
"Company" shall have the meaning assigned to such term in the first
paragraph hereof.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
Credit Agreement
<PAGE>
-6-
"Credit Documents" shall mean, collectively, this Agreement, the
promissory notes (if any) delivered pursuant to Section 2.08(d) hereof, the
Letter of Credit Documents and the Security Documents.
"Credit Party" shall mean each of the Company, the Guarantor and the
Subsidiary Guarantors.
"Debt Issuance" shall mean any issuance or incurrence by the
Guarantor or any of its Subsidiaries after the Effective Date of Indebtedness
under Section 9.07(g) hereof.
"Debt to Cash Flow Ratio" shall mean, as at any date, the ratio of
(a) the aggregate Indebtedness of the Guarantor and its Subsidiaries (determined
on a consolidated basis without duplication in accordance with GAAP) as of such
date to (b) Cash Flow for the Reporting Period as of such date; provided that
Indebtedness (as used in this definition of "Debt to Cash Flow Ratio") shall not
include any undrawn amount under any letter of credit issued for the account of
the Company or its Subsidiaries but shall include the funded portion of the
Receivables Financing; and provided, further, that upon the consummation of any
Permitted Acquisition (if the Person, line of business or division so acquired
has audited financial statements with respect to the applicable Reporting Period
or, if such audited financial statements are not available for the entire
Reporting Period, the Guarantor has delivered to the Administrative Agent an
income statement and cash flow statement for such Person, line of business or
division for such Reporting Period (which may be based in part on any audited
financial statements available for part of such Reporting Period) accompanied by
a certificate of a senior financial officer of the Guarantor stating that such
officer has reviewed the historical performance of such Person, line of business
or division and believes that such statements fairly represent in all material
respects the historical performance of such entity), the calculation of the Debt
to Cash Flow Ratio (both with respect to Cash Flow and Indebtedness) shall be
calculated as if such Permitted Acquisition had occurred, and any Indebtedness
incurred in connection therewith had been incurred, on the first day of the
Reporting Period during which such Permitted Acquisition shall have been
consummated.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Subsidiaries to any other Person excluding (i) any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms, (ii) the
licensing of general intangibles in the ordinary course of business, (iii) the
sale of overdue receivables in the ordinary course of business, (iv) the sale of
worn-out or obsolete equipment in the ordinary course of business and (v) any
Disposition of Property in connection with any Casualty Event.
"Dollars" and "$" shall mean lawful money of the United States of
America.
Credit Agreement
<PAGE>
-7-
"Domestic Subsidiary" shall mean any Subsidiary of the Guarantor
that is organized or created under the laws of the United States of America, any
State thereof or the District of Columbia.
"EBITDA" shall mean, for any period, the sum, for the Guarantor and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net income for such period plus (b)
Interest Expense for such period, together with any original issue discount to
the extent deducted in calculating net income plus (c) income taxes for such
period, plus (d) losses attributable to equity in Affiliates for such period
plus (e) depreciation and amortization (to the extent deducted in computing net
income) for such period minus (f) extraordinary or nonrecurring, non-cash items
of income or gain for such period plus (g) any extraordinary or nonrecurring,
non-cash items of expense or loss for such period minus (h) gains attributable
to equity in Affiliates for such period plus (i) all non-cash charges related to
employee compensation to the extent deducted in calculating net profits.
"Effective Date" shall mean the date on which the conditions to the
effectiveness of this Agreement set forth in Section 7.01 hereof shall have been
satisfied or waived.
"Environmental Claim" shall mean, with respect to any Person, any
written or oral notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release, of any
Hazardous Material at any location, whether or not owned by such Person, or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law. The term "Environmental Claim" shall include, without
limitation, any claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment from Hazardous
Materials.
"Environmental Laws" shall mean any and all applicable Federal,
state, local and foreign laws, rules or regulations, and applicable and legally
binding orders or decrees, in each case as now or hereafter in effect, relating
to the regulation or protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitation, ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or toxic
or hazardous substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by the
Guarantor or any of its Subsidiaries after the Effective Date of (i) any of its
capital stock, (ii) any warrants or options exercisable in respect of its
capital stock or (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the Guarantor or any of
its Subsidiaries or (b) the receipt by the Guarantor or any of its Subsidiaries
after the Effective Date
Credit Agreement
<PAGE>
-8-
of any capital contribution (whether or not evidenced by any equity security
issued by the recipient of such contribution); provided that Equity Issuance
shall not include (1) any such issuance or sale by any Subsidiary of the
Guarantor to the Guarantor or any Wholly-Owned Subsidiary of the Guarantor, (2)
any capital contribution by the Guarantor or any Wholly-Owned Subsidiary of the
Guarantor to any Subsidiary of the Guarantor, (3) any cancellation of the
Guarantor Note after the Effective Date or (4) any warrants or options issued to
directors, officers or employees of the Guarantor or any of its Subsidiaries
pursuant to employee benefit plans, incentive plans or similar plans or programs
established in the ordinary course of business and any capital stock of the
Guarantor issued upon the exercise of such warrants or options or withheld by
the Guarantor or the Company to satisfy its Federal or state withholding tax
obligations in connection with the exercise of such warrants or options by any
of its directors, officers or employees.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which either Obligor is a member and (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which either Obligor is a member.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period therefor, the rate per annum appearing on Page 3750
of the Telerate Service (or on any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m. London time on the date two
Business Days prior to the first day of such Interest Period as the rate for
Dollar deposits having a term comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the Eurodollar
Base Rate for such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Eurodollar Loans" shall mean Loans that bear interest at rates
based upon the Eurodollar Base Rate.
Credit Agreement
<PAGE>
-9-
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loan for such Interest Period divided by 1
minus the Reserve Requirement (if any) for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Section 10 hereof.
"Excess Cash Flow" shall mean, for any period, (a) Cash Flow for
such period minus (b) the aggregate amount of Fixed Charges for such period.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the recitals of this Agreement.
"Existing Lender" shall mean each lender party to the Existing
Credit Agreement.
"Existing Revolving Credit Loan" shall have the meaning assigned to
such term in Section 2.01(a) hereof.
"Existing Senior Subordinated Notes" shall mean the Company's 8-3/8%
Senior Subordinated Notes due April 15, 2008 in an original aggregate principal
amount of $100,000,000.
"Existing Tranche A Term Loan" shall have the meaning assigned to
such term in Section 2.01(b) hereof.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) 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 on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fixed Charges" shall mean, for any Reporting Period, the sum, for
the Guarantor and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all payments of
principal of Indebtedness scheduled to be made during such Reporting Period plus
(b) all Interest Expense for such Reporting Period plus (c) income taxes paid in
cash during such Reporting Period plus (d) all dividends paid in cash by the
Guarantor during such Reporting Period.
Credit Agreement
<PAGE>
-10-
"Fixed Charges Ratio" shall mean, as at any date, the ratio of (a)
Cash Flow for the Reporting Period as of such date to (b) Fixed Charges for such
Reporting Period
"GAAP" shall mean generally accepted accounting principles applied
on a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement in accordance with the
requirements of the Commission and the Emerging Issues Task Force established by
the Financial Accounting Standards Board.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Guarantee Assumption Agreement" shall mean a Guarantee Assumption
Agreement substantially in the form of Exhibit H hereto by an entity that,
pursuant to Section 9.21(a) hereof is required to become a "Subsidiary
Guarantor" hereunder in favor of the Administrative Agent.
"Guarantor" shall have the meaning assigned to such term in the
first paragraph hereof.
"Guarantor Note" shall mean the promissory note executed by
Associated Holdings, Inc. (and subsequently assumed by the Guarantor upon the
merger of Associated Holdings, Inc. into the Guarantor) and delivered to the
Company to evidence the loan made by Associated Stationers, Inc. (which was
subsequently merged into the Company) to Associated Holdings, Inc.
"Guaranteed Obligations" shall have the meaning assigned to such
term in Section 6.01 hereof.
"Hazardous Material" shall mean, collectively, (a) any petroleum or
petroleum products, explosives, radioactive materials, asbestos that is or could
become friable, urea formaldehyde foam insulation, and transformers or other
equipment that contain polychlorinated biphenyls in excess of 50 parts per
million ("PCB's"), (b) any chemicals or other materials or substances that are
now or hereafter become defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any Environmental
Law and (c) any other chemical
Credit Agreement
<PAGE>
-11-
or other material or substance, exposure to which is now or hereafter
prohibited, limited or regulated under any Environmental Law.
"Hedging Agreement" shall mean any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" shall mean, for any Person (without duplication): (a)
obligations created, issued or incurred by such Person for borrowed money
(whether by loan, the issuance and sale of debt securities or the sale of
Property to another Person subject to an understanding or agreement, contingent
or otherwise, to repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; (f) Indebtedness of others Guaranteed
by such Person and (g) any Redeemable Capital Stock issued by the Guarantor or
any of its Subsidiaries after the Effective Date. The amount of any Indebtedness
of any Person described in clause (c) above that is non-recourse to such Person
shall, for purposes of this Agreement, be deemed to be equal to the lesser of
(i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market
value of the property or asset encumbered, as determined by such Person in good
faith. The amount of any Indebtedness of any Person described in clause (f)
above shall, for purposes of this Agreement, be deemed to be the aggregate
amount of Indebtedness Guaranteed by such Person (if a fixed amount) or the
maximum reasonably anticipated liability arising as a result of such Guarantee
(if not a fixed amount), determined by such Person in good faith.
Notwithstanding anything herein to the contrary, the funded portion of the sale
of any Receivables in connection with the Receivables Financing, together with
any obligation of the seller thereof to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in connection
therewith, shall be treated as "Indebtedness" for purposes of the Agreement.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated June 2000 with respect to the credit facilities provided for in
this Agreement.
"Interest Coverage Ratio" shall mean, as at any date, the ratio of
(a) EBITDA for the Reporting Period as of such date to (b) Interest Expense for
such Reporting Period.
"Interest Expense" shall mean, for any period, the sum, for the
Guarantor and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all cash interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations) accrued during such
period (whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements during
such period (whether or not
Credit Agreement
<PAGE>
-12-
actually paid or received during such period) plus (c) all imputed interest,
whether in the form of "yield", "discount" or similar item, that accrues during
such period in respect of the funded portion of the Receivables Financing.
"Interest Period" shall mean, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or the last day of the next preceding Interest Period for
such Loan and ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Company may select as provided
in Section 4.05 hereof, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period for any Revolving Credit
Loan may end after the Revolving Credit Commitment Termination Date; (ii) no
Interest Period for any Term Loan of any Class may commence before and end after
any Principal Payment Date for the Loans of such Class unless, after giving
effect thereto, the aggregate principal amount of the Term Loans of such Class
having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Term Loans of such
Class scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date; (iii) each
Interest Period that would otherwise end on a day that is not a Business Day
shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day); and (iv) notwithstanding clauses (i) and (ii) above, no Interest
Period shall have a duration of less than one month and, if the Interest Period
for any Eurodollar Loan would otherwise be a shorter period, such Loan shall not
be available hereunder for such period.
"Inventory" shall mean office products, office furniture, computer
accessories, catalogues, janitorial or sanitary maintenance and other readily
marketable goods (including specialty products) of a type sold by the Company or
a Subsidiary in the ordinary course of business.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person; (b) the making of any deposit with, or
advance, loan or other extension of credit to, any other Person (including the
purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such Person); (c)
the entering into of any Hedging Agreement; (d) the making of any payment, on
behalf of any other Person, with respect to any obligation of such other Person
or (e) the making of any capital contribution to any other Person.
"Issuing Bank" shall mean Chase, as the issuer of Letters of Credit
under Section 2.03 hereof, together with its successors and assigns in such
capacity.
"Lender" shall have the meaning assigned to such term in the first
paragraph hereof.
Credit Agreement
<PAGE>
-13-
"Lender Affiliate" shall mean (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Letter of Credit" shall have the meaning assigned to such term in
Section 2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Letter of Credit Fee Rate" shall mean a rate per annum equal to
2.00%; provided that (i) the Letter of Credit Fee Rate for any period from and
including the date on which the Company shall have delivered to the
Administrative Agent a certificate pursuant to the last paragraph of Section
9.01 hereof, demonstrating in reasonable detail (based upon financial statements
for the fiscal period of the Guarantor most recently ended that have been
delivered to the Lenders pursuant to Section 9.01(a) or (b) hereof or, prior to
the delivery of financial statements pursuant to said Section, the financial
statements of the Guarantor referred to in Section 8.02 hereof) that the
Leverage Ratio, as of the end of the respective quarterly fiscal period or
fiscal year, is within one of the ranges set forth below to but excluding the
date of delivery of the next such certificate, shall equal the percentage set
forth below:
Leverage Ratio Rate
-------------- ----
Greater than 4.50 to 1 2.25%
Less than or equal to 4.50 to 1
but greater than 4.00 to 1 2.00%
Less than or equal to 4.00 to 1
but greater than 3.50 to 1 1.75%
Less than or equal to 3.50 to 1
but greater than 3.00 to 1 1.50%
Less than or equal to 3.00 to 1 1.25%;
provided further that (i) notwithstanding the foregoing, for purposes of
calculating the Letter of Credit Fee Rate at any time prior to the delivery of
the compliance certificate required under the
Credit Agreement
<PAGE>
-14-
last paragraph of Section 9.01 hereof for the fiscal quarter of the Guarantor
ending June 30, 2000, the Letter of Credit Fee Rate shall be 1.25% per annum,
(ii) the Letter of Credit Fee Rate, during any period when an Event of Default
or Default in delivery of the certificate pursuant to the last paragraph of
Section 9.01 hereof shall have occurred and be continuing, shall be 2.00% per
annum; and (iii) the Letter of Credit Fee Rate for any Letter of Credit arising
out of the purchase of goods and requiring the presentation of a bill of lading
or other transportation document of title shall be the rate per annum set forth
above minus 1.00%, provided that the Letter of Credit Fee Rate with respect to
any such Letter of Credit shall at no time be less than 0.25% per annum.
"Letter of Credit Interest" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the Issuing
Bank, the Issuing Bank's retained interest) in the Issuing Bank's liability
under Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn amount
of such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Company at such time due and payable in respect
of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender (other than the Issuing Bank) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.03
hereof, and the Issuing Bank shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Revolving Credit Lenders
other than the Issuing Bank of their participation interests under said Section
2.03.
"Leverage Ratio" shall mean, as at any date, the ratio of (a) the
aggregate Indebtedness of the Guarantor and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) as of such date
to (b) EBITDA for the Reporting Period as of such date; provided that
Indebtedness (as used in this definition of "Leverage Ratio") shall not include
any undrawn amount under any letter of credit issued for the account of the
Company or its Subsidiaries but shall include the funded portion of the
Receivables Financing; and provided, further, that upon the consummation of any
Permitted Acquisition of a Person (if the Person, line of business or division
so acquired has audited financial statements with respect to the applicable
Reporting Period or, if such audited financial statements are not available for
the entire Reporting Period, the Guarantor has delivered to the Administrative
Agent an income statement and cash flow statement for such Person, line of
business or division for such Reporting Period (which may be based in part on
any audited financial statements available for part of such Reporting Period)
accompanied by a certificate of a senior financial officer of the Guarantor
stating that such officer has reviewed the historical performance of such
Person, line of business or division and believes that such statements fairly
represent in all material respects the historical performance of such entity),
the calculation of the Leverage Ratio (both with respect to EBITDA and
Indebtedness) shall be calculated as if such Permitted Acquisition had occurred,
and any Indebtedness incurred in connection therewith had been incurred, on the
first day of the Reporting Period for the date of such Permitted Acquisition.
Credit Agreement
<PAGE>
-15-
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Credit Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than a lease evidencing an Operating Lease Obligation) relating to such
Property.
"Loans" shall mean the Revolving Credit Loans, the Tranche A Term
Loans, the Tranche A-1 Term Loans and the Swingline Loans.
"Majority Lenders" shall mean Lenders holding at least 51% of the
sum of (a) the aggregate unused Commitments, (b) the aggregate unpaid principal
amount of the Loans (other than the Swingline Loans) and (c) the aggregate
amount of all Letter of Credit Liabilities.
"Majority Revolving Credit Lenders" shall mean Revolving Credit
Lenders holding at least 51% of the aggregate amount of the Revolving Credit
Commitments or, if the Revolving Credit Commitments shall have terminated,
Lenders holding at least 51% of the sum of (a) the aggregate unpaid principal
amount of the Revolving Credit Loans plus (b) the aggregate amount of all Letter
of Credit Liabilities.
"Majority Term Loan Lenders" shall mean Majority Tranche A Term Loan
Lenders and Majority Tranche A-1 Term Loan Lenders.
"Majority Tranche A Term Loan Lenders" shall mean Tranche A Term
Loan Lenders holding at least 51% of the aggregate outstanding principal amount
of the Tranche A Term Loans or, if the Tranche A Term Loans shall not have been
made, at least 51% of the Tranche A Term Loan Commitments.
"Majority Tranche A-1 Term Loan Lenders" shall mean Tranche A-1 Term
Loan Lenders holding at least 51% of the aggregate outstanding principal amount
of the Tranche A-1 Term Loans or, if the Tranche A-1 Term Loans shall not have
been made, at least 51% of the Tranche A-1 Term Loan Commitments.
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations U and X.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Guarantor and its Subsidiaries taken as a
whole or the Company and its Subsidiaries taken as a whole, (b) the ability of
any Credit Party to perform its obligations under any of the Credit Documents to
which it is a party, (c) the validity or enforceability of any of the Credit
Documents, (d) the rights and remedies of the Lenders and the Administrative
Agent under any of the Credit Documents or (e) the timely payment of the
principal of or interest on the Loans or the Reimbursement Obligations or other
amounts payable in connection therewith.
"Mortgages" shall mean, collectively, one or more instruments of
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing or Deed of
Trust, Assignment of
Credit Agreement
<PAGE>
-16-
Rents, Security Agreement and Fixture Filing executed by the Company in favor of
the Administrative Agent for the benefit of the Administrative Agent and the
Lenders (or, in the case of a Deed of Trust, to the Deed of Trust trustee in
favor of the Administrative Agent for the benefit of the Lenders), substantially
in the form of Exhibit D hereto (conformed to local lending practices in the
jurisdiction in which the relevant real Property is located including, without
limitation, additional remedies available to lenders in such jurisdiction and,
if applicable, conformed to the extent necessary to secure a tenant's interest
in a ground lease) and covering the respective owned and leasehold real
Properties required to be subject to a Mortgage pursuant to this Agreement, as
said instruments of Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing and Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing shall be modified, amended, extended and supplemented and in
effect from time to time.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Guarantor
or the Company or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition;
(ii) in the case of any Equity Issuance, the aggregate amount of all
cash received by the Guarantor and its Subsidiaries in respect of such
Equity Issuance net of reasonable expenses incurred in connection
therewith (including, without limitation, any underwriting, brokerage or
other customary selling commissions, all due diligence costs or expenses
paid for, or reimbursed by the Guarantor or any of its Subsidiaries,
attorneys fees and expenses paid for or reimbursed by the Guarantor or any
of its Subsidiaries and other direct costs associated therewith);
(iii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Company and its Subsidiaries in respect of such Casualty Event net
of (A) reasonable expenses incurred by the Company and its Subsidiaries in
connection therewith (including, without limitation, any legal,
accounting, appraisal or expert fees or expenses paid for by the Company
or its Subsidiaries and other direct costs associated therewith), (B)
contractually required repayments of Indebtedness to the extent secured by
a Lien on such Property, (C) any income and transfer taxes payable by the
Company or any of its Subsidiaries in respect of such Casualty Event and
(D) other payments contractually required to be paid to lessors,
sublessors, lessees and sublessees and other holders (other than
Affiliates) of interests in the Property subject to such Casualty Event;
and
(iv) in the case of any Debt Issuance, the aggregate amount of all
cash received by the Guarantor and its Subsidiaries in respect of such
Debt Issuance net of reasonable expenses incurred in connection therewith
(including, without limitation, any underwriting, brokerage or other
customary selling commissions, all due diligence costs or expenses paid
for, or reimbursed by the Guarantor or any of its Subsidiaries, attorneys
Credit Agreement
<PAGE>
-17-
fees and expenses paid for or reimbursed by the Guarantor or any of its
Subsidiaries and other direct costs associated therewith).
"Net Cash Payments" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments (including any cash payments with respect
to non-cash consideration as received and any purchase price adjustments with
respect to such Disposition received by the Guarantor or its Subsidiaries in
connection therewith) received by the Guarantor and its Subsidiaries directly or
indirectly in connection with such Disposition; provided that (a) Net Cash
Payments shall be net of (i) the amount of any legal, title and recording tax
expenses, commissions and other fees and expenses paid by the Guarantor and its
Subsidiaries in connection with such Disposition, (ii) any Federal, state and
local income or other taxes estimated to be payable by the Guarantor and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes (other than income taxes) are in fact paid to the relevant
Federal, state or local governmental authority within three months of the date
of such Disposition), (iii) brokerage or other customary selling commissions,
(iv) expenses incurred in preparing such asset for sale and (v) purchase price
adjustments with respect to any Disposition payable by the Guarantor or any of
its Subsidiaries in connection therewith and (b) Net Cash Payments shall be net
of any repayments by the Guarantor or any of its Subsidiaries of Indebtedness
(other than Indebtedness to the Lenders hereunder) to the extent that (i) such
Indebtedness is secured by a Lien on the Property that is the subject of such
Disposition and (ii) the transferee of (or holder of a Lien on) such Property
requires that such Indebtedness be repaid as a condition to the purchase of such
Property.
"Net Income" shall mean, for any period, the consolidated net income
of the Guarantor and its Subsidiaries determined in accordance with GAAP.
"Net Worth" shall mean, as at any date, the consolidated net worth
of the Guarantor and its Subsidiaries (determined in accordance with GAAP) minus
any write-up in the book value of assets resulting from a revaluation thereof.
"1998 Indenture" shall mean the Indenture dated as of April 15,
1998, among the Company, the Guarantor and The Bank of New York, as Trustee.
"Obligors" shall have the meaning assigned to such term in the first
paragraph hereof.
"Operating Lease Obligations" shall mean , for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property other than a Capital Lease
Obligation.
"Part A Property" shall mean any of the Property described in Part A
of Schedule IV hereto under the heading "Dispositions".
"Part B Property" shall mean any of the Property described in Part B
of Schedule IV hereto under the heading "Dispositions".
Credit Agreement
<PAGE>
-18-
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" shall mean any acquisition after the
Effective Date by either Obligor of a Person, line of business or division
engaged in the same or substantially similar line of business as the Company and
its Subsidiaries is engaged in on the date hereof, the purchase price of which
acquisition, together with the purchase price of all other Permitted
Acquisitions, does not exceed $125,000,000; provided that no such acquisition
effected pursuant to a tender offer under Section 14(d) of the Exchange Act
shall qualify as a Permitted Acquisition unless such tender offer has been
authorized by the board of directors of the Person to be acquired.
"Permitted Investments" shall mean: (a) direct obligations of the
United States of America, or of any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and having capital, surplus and undivided profits of at least
$500,000,000, maturing not more than 90 days from the date of acquisition
thereof; and (c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Ratings Services or Moody's Investors Services, Inc., respectively,
maturing not more than 90 days from the date of acquisition thereof; in each
case so long as the same (x) provide for the payment of principal and interest
(and not principal alone or interest alone) and (y) are not subject to any
contingency regarding the payment of principal or interest.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"Pledge Agreement" shall mean the Second Amended and Restated Pledge
Agreement, substantially in the form of Exhibit C hereto, between the Guarantor
and the Administrative Agent, as the same shall be amended, restated, modified
and supplemented and in effect from time to time.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan, any Reimbursement Obligation or any other amount under this Agreement or
any other Credit Document that is not paid when due (whether at stated maturity,
by acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum during the period from and including the due date to but excluding the
date on which such amount is paid in full equal to (a) in the case of any
principal of any Loan or any interest thereon, 2% plus the Applicable Margin
with respect to such Loan plus the Base Rate as in effect from time to time or
(b) in the case of any other such amount, 4.00% plus the Base Rate as in effect
from time to time (provided that, if the amount so in default is principal of a
Eurodollar Loan and the due date thereof is a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" for such principal shall be,
for the
Credit Agreement
<PAGE>
-19-
period from and including such due date to but excluding the last day of such
Interest Period, 2% plus the interest rate for such Loan as provided in Section
3.02(b) hereof and, thereafter, the rate provided for above in this definition).
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of Chase, located
on the date hereof at 270 Park Avenue, New York, New York 10017.
"Principal Payment Date" shall mean each Quarterly Date on which a
principal payment in respect of the Term Loans is required to be made pursuant
to Section 3.01 hereof.
"Pro Forma Effect" shall mean, for any event, to calculate the
operating results for the Reporting Period in respect of the date of such event
as if such event had occurred on the first day of such Reporting Period after
giving effect to any changes in the capital structure or Indebtedness (and
otherwise based upon the actual operating results for such Reporting Period).
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean March 31, June 30, September 30 and
December 31 of each year, beginning with the first such date occurring after the
Effective Date; provided that, if any such date is not a Business Day, the
relevant Quarterly Date shall be the next succeeding Business Day.
"Receivables" shall mean, as at any date, the unpaid portion of the
obligation, as stated on the respective billing statement, of a customer of the
Company or any Subsidiary Guarantor in respect of Inventory sold and shipped by
(or services performed by) the Company or any Subsidiary Guarantor, as the case
may be, to such customer.
"Receivables and Related Assets" shall mean Receivables and any
instruments, documents, chattel paper, obligations, general intangibles and
other similar assets, in each case, relating to such Receivables.
"Receivables Company" shall mean USS Receivables Company, Ltd., a
Wholly-Owned Subsidiary of the Company organized as a limited liability company
under the laws of the Cayman Islands or any other Wholly-Owned Subsidiary of the
Company established for the limited purpose of acquiring and financing
Receivables and Related Assets pursuant to the Receivables Financing.
"Receivables Financing" shall mean the sale of Receivables and
Related Assets pursuant to the Receivables Financing Documents.
"Receivables Financing Documents" shall mean the Receivables Sale
Agreement dated as of the date hereof among the Receivables Company and the
Company, as seller and servicer, the Pooling Agreement dated as of the date
hereof among the Receivables Company, and the Company, as servicer, and Chase,
as trustee and the Servicing Agreement dated as of the
Credit Agreement
<PAGE>
-20-
date hereof among the Receivables Company, the Company, as servicer, and Chase,
as trustee, and any amendment, modification, supplement, extension or renewal of
or to any such agreement, including any supplement to the Pooling Agreement
delivered thereunder in compliance therewith, provided that (i) the board of
directors of the Company shall have determined in good faith that such
amendment, extension, modification, supplement or renewal is economically fair
and reasonable to the Company and the Receivables Subsidiary, (ii) the sale of
any Receivables and Related Assets pursuant thereto is made at fair market value
(as determined in good faith by the board of directors of the Company), (iii)
the financing terms, covenants and other material provisions of such amendment,
extension, modification, renewal or supplement are market terms (as determined
in good faith by the board of directors of the Company), (iv) no portion of any
Indebtedness created thereunder is guaranteed by or is recourse to the Guarantor
or any other Subsidiary of the Guarantor (other than recourse for customary
representations, warranties, covenants and indemnities, none of which shall
relate to the collectability of the Receivables transferred thereunder) and (v)
neither the Guarantor nor any Subsidiaries of the Guarantor have any obligation
thereunder to maintain or preserve the financial condition of the Receivables
Company.
"Redeemable Capital Stock" shall mean, with respect to any Person,
any capital stock of such Person that, either by its terms or by the terms of
any security into which it is convertible or exchangeable or otherwise, is or
upon the happening of an event or passage of time would be, required to be
redeemed or is redeemable at the option of the holder thereof prior to the date
that is 91 days after June 30, 2005, or is exchangeable for debt securities at
any time at the option of the holder thereof.
"Registered Holder" shall have the meaning assigned to such term in
Section 5.07(a)(ii) hereof.
"Registered Loan" shall have the meaning assigned to such term in
Section 2.08(e) hereof.
"Regulations A, D, U and X" shall mean, respectively, Regulations A,
D, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any Lender, any
change after the date hereof in applicable Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Lender of or under any Federal, state or foreign
law or regulations (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) by any court or governmental or
monetary authority charged with the interpretation or administration thereof.
"Reimbursement Obligations" shall mean, at any time, the obligations
of the Company then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Bank in respect of any drawings under a Letter of Credit.
Credit Agreement
<PAGE>
-21-
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment.
"Relevant Party" shall have the meaning assigned to such term in
Section 10(b) hereof.
"Reporting Period" shall mean, for any date, the period of four
consecutive fiscal quarters of the Guarantor ending (at the close of business)
on or most recently ended prior to such date.
"Reserve Requirement" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"Responsible Officer" shall mean, with respect to any Person, the
President, the Treasurer, Chief Financial Officer and Controller of such Person
and such other officer or officers of such Person as the Administrative Agent
may from time to time agree.
"Restricted Payment" shall mean, with respect to any Person,
dividends (in cash, Property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of stock of such Person or of any
warrants, options or other rights to acquire the same (or to make any payments
to any Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market or equity value of such Person or
any of its Subsidiaries), but excluding (i) dividends payable solely in shares
of common stock of such Person or (ii) any cancellation of the Guarantor Note.
"Revolving Credit Commitment" shall mean, for each Revolving Credit
Lender, the obligation of such Lender to make Revolving Credit Loans (including
to continue its Existing Revolving Credit Loans) in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount set forth
opposite the name of such Lender on Annex 1 hereto under the caption "Revolving
Credit Commitment" (as the same may be reduced from time to time pursuant to
Section 2.04 or 2.10 hereof or reduced or increased from time to time pursuant
to assignments by or to such Revolving Credit Lender pursuant to Section 12.06
hereof). The maximum aggregate principal amount of the Revolving Credit
Commitments under this Agreement on the Effective Date is $250,000,000.
Credit Agreement
<PAGE>
-22-
"Revolving Credit Commitment Percentage" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean March 31,
2004.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments and (b) thereafter, the Lenders from
time to time holding Revolving Credit Loans and Revolving Credit Commitments
after giving effect to any assignments thereof permitted by Section 12.06(b)
hereof.
"Revolving Credit Loans" shall mean the loans provided for in
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Security Agreement" shall mean the Third Amended and Restated
Security Agreement, substantially in the form of Exhibit A hereto, between the
Company and the Administrative Agent, as the same shall be amended, restated,
modified and supplemented and in effect from time to time.
"Security Documents" shall mean, collectively, the Security
Agreement, the Subsidiary Guarantee and Security Agreement, the Mortgages and
the Pledge Agreement.
"Senior Subordinated Debt Documents" shall mean the Senior
Subordinated Notes and the Senior Subordinated Notes Indentures, as the same
shall, subject to Section 9.18 hereof, be modified and supplemented and in
effect from time to time.
"Senior Subordinated Notes" shall mean (a) the Existing Senior
Subordinated Notes and (b) any other senior subordinated debentures or notes
issued by the Company after the date hereof pursuant to Section 9.07 hereof (and
any exchange notes issued in accordance with an indenture pursuant to which such
debentures or notes were issued).
"Senior Subordinated Notes Indentures" shall mean (a) with respect
to the Existing Senior Subordinated Notes, the 1998 Indenture and (b) with
respect to any Senior Subordinated Notes issued after the date hereof, the
indenture pursuant to which such Senior Subordinated Notes are issued.
"Subordinated Indebtedness" shall mean, collectively, (a) Senior
Subordinated Notes and (b) any other Indebtedness (i) for which the Company is
directly and primarily liable, (ii) in respect of which none of its Subsidiaries
is contingently or otherwise obligated and (iii) that is subordinated to the
obligations of the Company to pay principal of and interest on the Loans and
Reimbursement Obligations hereunder on terms, and pursuant to documentation
containing other terms (including interest, amortization, covenants and events
of default), in form and substance satisfactory to the Majority Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having
Credit Agreement
<PAGE>
-23-
by the terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
Unless otherwise specified, "Subsidiary" shall mean a Subsidiary of the
Guarantor. Notwithstanding anything herein to the contrary, for all purposes of
the Credit Documents, "Subsidiary" shall not include TOPCO unless expressly
specified therein.
"Subsidiary Guarantee and Security Agreement" shall mean the Amended
and Restated Subsidiary Guarantee and Security Agreement, substantially in the
form of Exhibit B hereto, among the Subsidiary Guarantors and the Administrative
Agent, as the same may be amended, restated, modified and supplemented and in
effect from time to time.
"Subsidiary Guarantors" shall mean each Domestic Subsidiary of the
Guarantor in existence on the Effective Date (other than the Company and TOPCO)
and each other Domestic Subsidiary of the Guarantor that shall become a
"Subsidiary Guarantor" pursuant to Section 9.21 hereof.
"Swingline Commitment" shall mean the obligation of the Swingline
Lender to make Swingline Loans pursuant to Section 2.01(d) hereof in an
aggregate amount at any one time outstanding up to but not exceeding $25,000,000
(as the same may be reduced at any time or from time to time pursuant to Section
2.04 or 2.10 hereof).
"Swingline Lender" shall have the meaning assigned to such term in
the first paragraph hereof.
"Swingline Loans" shall mean the loans provided for by Section
2.01(d) hereof.
"Swingline Rate" shall mean, for any day, the Base Rate in effect
for such date. Each change in any interest rate provided for herein based upon
the Swingline Rate resulting from a change to the Swingline Rate shall take
effect at the time of such change in the Swingline Rate.
"Tax Sharing Agreement" shall mean the tax allocation agreement
among the Guarantor and its Subsidiaries.
"Term Loan Commitments" shall mean the Tranche A Term Loan
Commitments and the Tranche A-1 Term Loan Commitments.
"Term Loan Lenders" shall mean Tranche A Term Loan Lenders and
Tranche A-1 Term Loan Lenders.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche A-1
Term Loans.
"TOPCO" shall mean The Order People Company, a Delaware corporation.
Credit Agreement
<PAGE>
-24-
"Tranche A Term Loan Commitment" shall mean, for each Tranche A Term
Loan Lender, the obligation of such Lender to continue its Existing Tranche A
Term Loan in the amount set forth opposite the name of such Lender on Annex 1
hereto under the caption "Tranche A Term Loan Commitment" (as the same may be
reduced from time to time pursuant to Section 2.04 or 2.10 hereof or reduced or
increased from time to time pursuant to assignments by or to such Term Loan
Lender pursuant to Section 12.06 hereof). The aggregate principal amount of the
Tranche A Term Loan Commitments under this Agreement on the Effective Date is
$52,147,082.32.
"Tranche A Term Loan Lenders" shall mean (a) on the date hereof, the
Lenders having Tranche A Term Loan Commitments and (b) thereafter, the Lenders
from time to time holding Tranche A Term Loans after giving effect to any
assignments thereof permitted by Section 12.06(b) hereof.
"Tranche A Term Loans" shall mean the loans provided for by Section
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Tranche A-1 Term Loan Commitment" shall mean, for each Tranche A-1
Term Loan Lender, the obligation of such Lender to make a Tranche A-1 Term Loan
in the amount set forth opposite the name of such Lender on Annex 1 hereto under
the caption "Tranche A-1 Term Loan Commitment" (as the same may be reduced from
time to time pursuant to Section 2.04 or 2.10 hereof or reduced or increased
from time to time pursuant to assignments by or to such Term Loan Lender
pursuant to Section 12.06 hereof). The aggregate principal amount of the Tranche
A-1 Term Loan Commitments under this Agreement on the Effective Date is
$150,000,000.
"Tranche A-1 Term Loan Lenders" shall mean (a) on the date hereof,
the Lenders having Tranche A-1 Term Loan Commitments and (b) thereafter, the
Lenders from time to time holding Tranche A-1 Term Loans after giving effect to
any assignments thereof permitted by Section 12.06(b) hereof.
"Tranche A-1 Term Loans" shall mean the loans provided for by
Section 2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Type" shall have the meaning assigned to such term in Section 1.03
hereof.
"U.S. Person" shall mean a citizen or resident of the United States
of America, a corporation, partnership or other entity created or organized in
or under any laws of the United States of America or any State thereof, or any
estate or trust the income of which is subject to Federal income taxation
regardless of its source.
"U.S. Taxes" shall mean any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of America or
any taxing authority thereof.
"Wholly-Owned Subsidiary" shall mean, with respect to any Person,
any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or
Credit Agreement
<PAGE>
-25-
indirectly owned or controlled by such Person or one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more Wholly-Owned
Subsidiaries of such Person.
1.02 Accounting Terms and Determinations.
(a) All calculations made for the purposes of determining compliance
with Sections 9.10 through 9.13 hereof shall (except as otherwise expressly
provided herein) be made by application of generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest annual or quarterly financial statements furnished to the Lenders
pursuant to Section 9.01 hereof (or, prior to the delivery of the first
financial statements under Section 9.01 hereof, used in the preparation of the
audited consolidated financial statements of the Guarantor as at December 31,
1999 referred to in Section 8.02(a)(ii) hereof) unless (i) the Company shall
have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Majority Lenders shall so
object in writing within 30 days after delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01 hereof,
shall mean the audited consolidated financial statements of the Guarantor as at
December 31, 1999 referred to in Section 8.02(a)(ii) hereof). Notwithstanding
the foregoing, all financial statements delivered to the Lenders hereunder shall
be prepared utilizing the last-in-first-out basis of inventory valuation but all
calculations made for the purpose of determining compliance with this Agreement
shall be prepared utilizing the first-in-first-out basis of inventory valuation.
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 9.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 9 hereof, the Company will not change
the last day of its fiscal year from December 31, or the last days of the first
three fiscal quarters in each of its fiscal years from March 31, June 30 and
September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Revolving Credit Loan, a Tranche A Term
Loan, a Tranche A-1 Term Loan or a Swingline Loan, each of which constitutes a
Class. The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes a Type. Loans may be identified by
both Class and Type.
Credit Agreement
<PAGE>
-26-
Section 2. Commitments, Loans and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender severally
agrees, on the terms and conditions of this Agreement, to make loans to the
Company in Dollars during the period from and including the Effective Date to
but not including the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of the Revolving Credit Commitment of such Lender as in effect from
time to time; provided that in no event shall the aggregate outstanding
principal amount of all Revolving Credit Loans, together with the aggregate
outstanding principal amount of all Swingline Loans and the aggregate amount of
all Letter of Credit Liabilities, exceed the aggregate amount of the Revolving
Credit Commitments as in effect from time to time. Subject to the terms and
conditions of this Agreement, during such period the Company may borrow, repay
and reborrow the amount of the Revolving Credit Commitments by means of Base
Rate Loans and Eurodollar Loans and may Convert Revolving Credit Loans of one
Type into Revolving Credit Loans of another Type (as provided in Section 2.09
hereof) or Continue Revolving Credit Loans of one Type as Revolving Credit Loans
of the same Type (as provided in Section 2.09 hereof). On the Effective Date,
the Revolving Credit Loans (as defined in the Existing Credit Agreement) held by
the Existing Lenders immediately prior to the Effective Date (but after giving
effect to the prepayments, if any, made pursuant to Section 7.01(k) hereof) (the
"Existing Revolving Credit Loans") shall automatically, and without any action
on the part of any Person, be designated and continued as Revolving Credit Loans
hereunder. On the Effective Date, all existing "Interest Periods" under the
Existing Credit Agreement in respect of the Existing Revolving Credit Loans
shall automatically be designated and continued as Interest Periods hereunder.
(b) Tranche A Term Loans. On the Effective Date, the Tranche A Term
Loans (as defined in the Existing Credit Agreement) held by the Existing Lenders
immediately prior to the Effective Date (but after giving effect to the
prepayments, if any, made pursuant to Section 7.01(k) hereof) (the "Existing
Tranche A Term Loans") shall automatically, and without any action on the part
of any Person, be designated and continued as Tranche A Term Loans hereunder.
Thereafter the Company may Convert Tranche A Term Loans of one Type into Tranche
A Term Loans of another Type (as provided in Section 2.09 hereof) or Continue
Tranche A Term Loans of one Type as Tranche A Term Loans of the same Type (as
provided in Section 2.09 hereof). The Tranche A Term Loans may from time to time
be Eurodollar Loans or Base Rate Loans, as determined by the Company and
notified to the Administrative Agent in accordance with Sections 2.02 and 2.09
hereof. On the Effective Date, all existing "Interest Periods" under the
Existing Credit Agreement in respect of the Existing Tranche A Term Loans shall
automatically be designated and continued as Interest Periods hereunder.
(c) Tranche A-1 Term Loans. Each Tranche A-1 Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make a term
loan to the Company in Dollars on the Effective Date in an aggregate principal
amount equal to the amount of the Tranche A-1 Term Loan Commitment of such
Lender. Thereafter the Company may Convert Tranche A-1 Term Loans of one Type
into Tranche A-1 Term Loans of another Type (as
Credit Agreement
<PAGE>
-27-
provided in Section 2.09 hereof) or Continue Tranche A-1 Term Loans of one Type
as Tranche A-1 Term Loans of the same Type (as provided in Section 2.09 hereof).
(d) Swingline Loans. The Swingline Lender agrees, on the terms and
conditions of this Agreement, to make loans ("Swingline Loans") to the Company
during the period from the Effective Date to but excluding the date five
Business Days prior to the Revolving Credit Commitment Termination Date in an
aggregate amount at any one time outstanding up to but not exceeding its
Swingline Commitment; provided that the aggregate principal amount of all
Revolving Credit Loans and Swingline Loans together with all Letter of Credit
Liabilities shall not at any time outstanding exceed the aggregate amount of the
Revolving Credit Commitments, as in effect from time to time. Subject to the
terms of this Agreement, the Company may borrow, repay and reborrow the amount
of the Swingline Commitment by means of Loans that bear interest at the
Swingline Rate; provided that no Swingline Loan may be borrowed to repay an
outstanding Swingline Loan.
(e) Limit on Eurodollar Loans. No more than seven separate Interest
Periods in respect of Eurodollar Loans of any Class from each Lender may be
outstanding at any one time.
2.02 Borrowings.
(a) General. The Company shall give the Administrative Agent (which
shall promptly notify the relevant Lenders) or, in the case of Swingline Loans,
the Swingline Lender, notice of each borrowing hereunder as provided in Section
4.05 hereof, which notice may be delivered by telephone if followed promptly by
notice in writing. Not later than 2:00 p.m. New York time on the date specified
for each borrowing hereunder, each relevant Lender shall make available the
amount of the Loan or Loans to be made by it on such date to the Administrative
Agent, at any account designated by the Administrative Agent with Chase at the
Principal Office, in immediately available funds, for account of the Company.
The amount so received by the Administrative Agent shall, subject to the terms
and conditions of this Agreement, be made available to the Company by depositing
the same, in immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by the Company or by
repaying any then outstanding Swingline Loan, as set forth in Section 2.02(b)
hereof.
(b) Borrowings to Repay Swingline Loans. Unless the Company has
already given a notice of borrowing of Revolving Credit Loans to repay a
Swingline Loan, if any Swingline Loan remains outstanding, at any time until the
unpaid principal amount of such Swingline Loan shall have been paid in full, the
Swingline Lender may, and the Company hereby irrevocably authorizes and empowers
(which power is coupled with an interest) the Swingline Lender to, deliver, on
behalf of the Company, to the Administrative Agent under Section 2.02(a) hereof
a notice of borrowing of Revolving Credit Loans that are Base Rate Loans in an
amount equal to the then unpaid principal amount of such Swingline Loan. In the
event that the power of the Swingline Lender to give such notice of borrowing on
behalf of the Company is terminated for any reason whatsoever (including,
without limitation, a termination resulting from the occurrence of an event
specified in clause (f) or (g) of Section 10 hereof with respect to the
Company), or the Swingline Lender is otherwise precluded for any reason
whatsoever from giving a notice of borrowing on behalf of the Company as
provided in the preceding sentence, each Lender shall, upon notice from the
Swingline Lender, promptly
Credit Agreement
<PAGE>
-28-
purchase from the Swingline Lender a participation in (or, if and to the extent
specified by the Swingline Lender, an assignment of) such Swingline Loan in the
amount of the Base Rate Loan it would have been obligated to make pursuant to
such notice of borrowing. Each Lender shall, not later than 4:00 p.m. New York
time on the Business Day on which such notice is given (if such notice is given
by 12:00 noon New York time) or 11:00 a.m. New York time on the next succeeding
Business Day (if such notice is given after 12:00 p.m., but before 5:00 p.m.,
New York time), make available the amount of the Base Rate Loan to be made by it
(or the amount of the participation or assignment to be purchased by it, as the
case may be) to the Administrative Agent at the account specified in Section
2.02(a) hereof and the amount so received by the Administrative Agent shall
promptly be made available to the Swingline Lender by remitting the same, in
immediately available funds, to the Swingline Lender. Promptly following its
receipt of any payment in respect of such Swingline Loans, the Swingline Lender
shall pay to each Lender that has acquired a participation in such Swingline
Loan such Lender's proportionate share of such payment. Anything in this
Agreement to the contrary notwithstanding (including, without limitation, in
Section 7.02 hereof), the obligation of each Lender to make its Base Rate Loan
(or purchase its participation in or assignment of such Swingline Loan, as the
case may be) pursuant to this Section 2.02(b) is unconditional under any and all
circumstances whatsoever and shall not be subject to set-off, counterclaim or
defense to payment that such Lender may have or have had against the Company,
the Guarantor, the Administrative Agent, the Swingline Lender or any other
Lender and, without limiting any of the foregoing, shall be unconditional
irrespective of (i) the occurrence of any Default, (ii) the financial condition
of the Company, any Subsidiary, the Guarantor, the Administrative Agent, the
Swingline Lender or any other Lender or (iii) the termination or cancellation of
the Commitments; provided that no Lender shall be obligated to make any such
Base Rate Loan (or to purchase any such participation or direct interest in the
Swingline Loan) if (i) before the making of such Swingline Loan, such Lender had
notified the Swingline Lender that a Default had occurred and was continuing and
that such Lender would not refinance such Swingline Loan or (ii) to the extent
(and only to the extent) that such Swingline Loan, together with all Revolving
Credit Loans then outstanding at the time of the making of such Swingline Loan
together with the aggregate amount of all outstanding Letter of Credit
Liabilities exceeds the then aggregate amount of the Revolving Credit
Commitments at the time of the making of such Swingline Loan. The Company agrees
that any Lender so purchasing a participation (or assignment) in such Swingline
Loan may exercise all rights of set-off, bankers' lien, counterclaim or similar
rights with respect to such participation as fully as if such Lender were a
direct holder of a Swingline Loan in the amount of such participation. The
Company hereby promises to pay the Administrative Agent for account of the
Swingline Lender the entire outstanding principal amount of the Swingline Loans,
and each such Swingline Loan shall mature, on the Revolving Credit Commitment
Termination Date.
2.03 Letters of Credit. Subject to the terms and conditions of this
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Company, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Bank of letters of credit
(collectively, "Letters of Credit") for account of the Company or any of its
Subsidiaries (as specified by the Company) and payable in Dollars, provided that
in no event shall (i) the aggregate amount of all Letter of Credit Liabilities
plus the aggregate outstanding principal amount of the Revolving Credit Loans
and the aggregate outstanding principal amount of the Swingline Loans, exceed
the aggregate amount of the
Credit Agreement
<PAGE>
-29-
Revolving Credit Commitments as in effect from time to time, (ii) the
outstanding aggregate amount of all Letter of Credit Liabilities exceed
$90,000,000 and (iii) the expiration date of any Letter of Credit extend beyond
the earlier of (I) the Revolving Credit Commitment Termination Date and (II) the
date twelve months following the issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, twelve months after such renewal or
extension). The following additional provisions shall apply to Letters of
Credit:
(a) The Company shall give the Administrative Agent at least three
Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than thirty days
preceding the Revolving Credit Commitment Termination Date) each Letter of
Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of
Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or a
standby letter of credit). Upon receipt of any such notice, the
Administrative Agent shall advise the Issuing Bank of the contents
thereof.
(b) On each day during the period commencing with the issuance by
the Issuing Bank of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Revolving Credit Commitment of
each Revolving Credit Lender shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the then undrawn amount of such Letter of
Credit. Each Revolving Credit Lender (other than the Issuing Bank) agrees
that, upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Issuing Bank's liability
under such Letter of Credit in an amount equal to such Lender's Revolving
Credit Commitment Percentage of such liability, and each Revolving Credit
Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to the Issuing Bank to pay
and discharge when due, its Revolving Credit Commitment Percentage of the
Issuing Bank's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Bank shall
promptly notify the Company (through the Administrative Agent) of the
amount to be paid by the Issuing Bank as a result of such demand and the
date on which payment is to be made by the Issuing Bank to such
beneficiary in respect of such demand. Notwithstanding the identity of the
account party of any Letter of Credit, the Company hereby unconditionally
agrees to pay and reimburse the Administrative Agent for account of the
Issuing Bank for the amount of each demand for payment under such Letter
of Credit that is in substantial compliance with the provisions of such
Letter of Credit at or prior to the date on which payment is to be made by
the Issuing Bank to the beneficiary thereunder, without presentment,
demand, protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph
(c) of this Section 2.03, the Company shall advise the Administrative
Agent whether or not the Company intends to borrow hereunder to finance
its obligation to reimburse the Issuing
Credit Agreement
<PAGE>
-30-
Bank for the amount of the related demand for payment and, if it does,
submit a notice of such borrowing as provided in Section 4.05 hereof. In
the event that the Company fails to so advise the Administrative Agent, or
if the Company fails to reimburse the Issuing Bank for a demand for
payment under a Letter of Credit by the date of such payment, the
Administrative Agent shall give each Revolving Credit Lender prompt notice
of the demand for payment, specifying such Lender's Revolving Credit
Commitment Percentage of the amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Bank) shall
pay to the Administrative Agent for account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds, the amount
of such Lender's Revolving Credit Commitment Percentage of any payment
under a Letter of Credit upon notice by the Issuing Bank (through the
Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount, unless such payment under such Letter
of Credit would not have been made but for the gross negligence or willful
misconduct of the Issuing Bank. Each such Revolving Credit Lender's
obligation to make such payment to the Administrative Agent for account of
the Issuing Bank under this paragraph (e), and the Issuing Bank's right to
receive the same, shall, subject to the preceding sentence, be absolute
and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, the failure of any other
Revolving Credit Lender to make its payment under this paragraph (e), the
financial condition of any Credit Party (or any other account party), the
existence of any Default or the termination of the Commitments. Each such
payment to the Issuing Bank shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Revolving Credit Lender shall
default in its obligation to make any such payment to the Administrative
Agent for account of the Issuing Bank, for so long as such default shall
continue the Administrative Agent may, at the request of the Issuing Bank,
withhold from any payments received by the Administrative Agent under this
Agreement for account of such Revolving Credit Lender the amount so in
default and, to the extent so withheld, pay the same to the Issuing Bank
in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to
the Issuing Bank pursuant to paragraph (e) above in respect of any Letter
of Credit, such Lender shall, automatically and without any further action
on the part of the Administrative Agent, the Issuing Bank or such Lender,
acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Bank by the Company
hereunder and under the Letter of Credit Documents relating to such Letter
of Credit and (ii) a participation in a percentage equal to such Lender's
Revolving Credit Commitment Percentage in any interest or other amounts
payable by the Company hereunder and under such Letter of Credit Documents
in respect of such Reimbursement Obligation (other than the commissions,
charges, costs and expenses payable to the Issuing Bank pursuant to
paragraph (g) of this Section 2.03). Upon receipt by the Issuing Bank from
or for account of the Company of any payment in respect of any
Reimbursement Obligation or any such interest or other amount (including
by way of setoff or application of proceeds of any collateral security)
the Issuing Bank shall promptly pay to the Administrative Agent for
account of each Revolving Credit Lender
Credit Agreement
<PAGE>
-31-
entitled thereto, such Revolving Credit Lender's Revolving Credit
Commitment Percentage of such payment, each such payment by the Issuing
Bank to be made in the same money and funds in which received by the
Issuing Bank. In the event any payment received by the Issuing Bank and so
paid to the Revolving Credit Lenders hereunder is rescinded or must
otherwise be returned by the Issuing Bank, each Revolving Credit Lender
shall, upon the request of the Issuing Bank (through the Administrative
Agent), repay to the Issuing Bank (through the Administrative Agent) the
amount of such payment paid to such Lender, with interest at the rate
specified in paragraph (j) of this Section 2.03.
(g) The Company shall pay to the Administrative Agent for account of
each Revolving Credit Lender (ratably in accordance with their respective
Revolving Credit Commitment Percentages) a letter of credit fee in respect
of each Letter of Credit in an amount equal to a rate per annum equal to
the Letter of Credit Fee Rate of the daily average undrawn amount of such
Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (i) in the case of a Letter of Credit that expires
in accordance with its terms, to and including such expiration date and
(ii) in the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Revolving Credit Commitment
Termination Date and to be calculated for any day after giving effect to
any payments made under such Letter of Credit on such day). In addition,
the Company shall pay to the Administrative Agent for account of the
Issuing Bank a fronting fee in respect of each Letter of Credit in an
amount equal to 1/4 of 1% per annum of the daily average undrawn amount of
such Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (i) in the case of a Letter of Credit
that expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Letter of Credit that is drawn
in full or is otherwise terminated other than on the stated expiration
date of such Letter of Credit, to but excluding the date such Letter of
Credit is drawn in full or is terminated (such fee to be non-refundable,
to be paid in arrears on each Quarterly Date and on the Revolving Credit
Commitment Termination Date and to be calculated for any day after giving
effect to any payments made under such Letter of Credit on such day) plus
all commissions, charges, costs and expenses in the amounts customarily
charged by the Issuing Bank from time to time in like circumstances with
respect to the issuance of each Letter of Credit and drawings and other
transactions relating thereto and as shown in fee schedules provided by
the Issuing Bank to the Company.
(h) Promptly following the end of each calendar month, the Issuing
Bank shall deliver (through the Administrative Agent) to each Revolving
Credit Lender and the Company a notice describing the aggregate amount of
all Letters of Credit outstanding at the end of the month. Upon the
request of any Revolving Credit Lender from time to time, the Issuing Bank
shall deliver any information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
Credit Agreement
<PAGE>
-32-
(i) The issuance by the Issuing Bank of each Letter of Credit shall,
in addition to the conditions precedent set forth in Section 7 hereof, be
subject to the conditions precedent that (i) such Letter of Credit shall
be in such form, contain such terms and support such transactions as shall
be satisfactory to the Issuing Bank consistent with its then current
practices and procedures with respect to letters of credit of the same
type and (ii) the Company shall have executed and delivered such
applications, agreements and other instruments relating to such Letter of
Credit as the Issuing Bank shall have reasonably requested consistent with
its then current practices and procedures with respect to letters of
credit of the same type, provided that in the event of any conflict
between any such application, agreement or other instrument and the
provisions of this Agreement or any Security Document, the provisions of
this Agreement and the Security Documents shall control.
(j) To the extent that any Revolving Credit Lender shall fail to pay
any amount required to be paid pursuant to paragraph (e) or (f) of this
Section 2.03 on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such amount from
and including such due date to but excluding the date such payment is made
at a rate per annum equal to the Federal Funds Rate, provided that if such
Lender shall fail to make such payment to the Issuing Bank within three
Business Days of such due date, then, retroactively to the due date, such
Lender shall be obligated to pay interest on such amount at the
Post-Default Rate.
(k) The issuance by the Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (ii) the
Majority Revolving Credit Lenders (if such conditions could have been
amended with the consent of the Majority Revolving Credit Lenders) or all
of the Revolving Credit Lenders (if such conditions could only have been
amended with the consent of all Revolving Credit Lenders) shall have
consented thereto.
(l) Concurrently with the satisfaction of the conditions precedent
set forth in Section 7.01 hereof, all letters of credit outstanding on the
Effective Date under the Existing Credit Agreement shall be deemed to be
Letters of Credit outstanding hereunder and the Revolving Credit Lenders
shall, automatically and without further action on the part of the Agent,
the Issuing Bank or such Revolving Credit Lenders, acquire a participation
interest in each such letter of credit as if such letter of credit shall
have been issued hereunder. From and after the Effective Date, the Letter
of Credit Fee Rate with respect to any such Letter of Credit shall be
determined in accordance with the definition of "Letter of Credit Fee
Rate" as set forth in Section 1 hereof.
The Company hereby indemnifies and holds harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims, damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in
Credit Agreement
<PAGE>
-33-
connection with the execution and delivery or transfer of or payment or refusal
to pay by the Issuing Bank under any Letter of Credit; provided that the Company
shall not be required to indemnify any Lender or the Administrative Agent for
any claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (x) the willful misconduct or gross negligence of
the Issuing Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) the Issuing
Bank's failure to pay under any Letter of Credit after the presentation to it of
a request strictly complying with the terms and conditions of such Letter of
Credit. Nothing in this Section 2.03 is intended to limit the other obligations
of the Company, any Lender, the Issuing Bank or the Administrative Agent under
this Agreement.
2.04 Changes of Commitments.
(a) The Company shall have the right at any time or from time to
time (i) to terminate or reduce the aggregate unused amount of the Term Loan
Commitments, (ii) so long as no Revolving Credit Loans, Swingline Loans or
Letter of Credit Liabilities are outstanding, to terminate the Revolving Credit
Commitments and (iii) to reduce the aggregate unused amount of the Revolving
Credit Commitments (for which purpose use of the Revolving Credit Commitments
shall be deemed to include the aggregate amount of Letter of Credit
Liabilities); provided that (x) the Company shall give notice of each such
termination or reduction as provided in Section 4.05 hereof, (y) each partial
reduction shall be in an aggregate amount at least equal to $5,000,000 (or a
larger multiple of $1,000,000) and (z) the aggregate amount of the Revolving
Credit Commitments shall at no time be less than the aggregate outstanding
principal amount of all Revolving Credit Loans, Swingline Loans and Letter of
Credit Liabilities.
(b) Any portion of the Term Loan Commitments not used on the
Effective Date shall terminate automatically at the close of business on the
Effective Date.
(c) The Company shall have the right to terminate or reduce the
unused amount of the Swingline Commitment at any time or from time to time on
not less than three Business Days' prior notice to the Administrative Agent
(which shall promptly notify the Swingline Lender and each Lender) of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of any such reduction (which shall be in integral multiples of
$100,000) and shall be irrevocable and effective only upon receipt by the
Administrative Agent.
(d) The Commitments of any Class (including the Swingline
Commitment) once terminated or reduced may not be reinstated.
2.05 Commitment Fee. The Company shall pay to the Administrative
Agent for account of each Revolving Credit Lender a commitment fee on the daily
average unused amount of the Revolving Credit Commitment of such Lender (solely
for which purpose the aggregate amount of any Letter of Credit Liabilities shall
be deemed to be a pro rata (based on the Revolving Credit Commitments) use of
each Revolving Credit Lender's Revolving Credit Commitment and outstanding
Swingline Loans shall not constitute the use of any Revolving Credit Lender's
Revolving Credit Commitment other than the Swingline Lender), for the period
from and including the date of this Agreement to but not including the earlier
of the date such
Credit Agreement
<PAGE>
-34-
Revolving Credit Commitment terminates or is terminated, at a rate per annum for
any period from and including the date on which the Company shall have delivered
a certificate pursuant to the last paragraph of Section 9.01 hereof
demonstrating in reasonable detail (based upon financial statements for the
fiscal period of the Guarantor most recently ended that have been delivered to
the Lenders pursuant to Section 9.01(a) or (b) hereof or, prior to the delivery
of financial statements pursuant to said Section, the financial statements of
the Guarantor referred to in Section 8.02(a) hereof) that the Leverage Ratio, as
of the end of the respective quarterly fiscal period or fiscal year, is within
one of the ranges set forth below, to but excluding the date of delivery of the
next such certificate, shall equal the percentage per annum set forth below:
Ratio Commitment Fee
----- --------------
Greater than 4.50 to 1 .50%
Less than or equal to 4.50 to 1 .375%
but greater than 3.50 to 1
Less than or equal
to 3.50 to 1 .25%
provided that (i) notwithstanding the foregoing, for purposes of determining the
commitment fee at any time prior to the delivery of the compliance certificate
required under the last paragraph of Section 9.01 hereof for the fiscal quarter
of the Guarantor ending June 30, 2000 the commitment fee shall be .25% per annum
and (ii) during any period when an Event of Default or Default in delivery of
the certificate pursuant to clause (ii) of the last paragraph of Section 9.01
hereof shall have occurred and be continuing, such rate per annum shall be
0.50%. Accrued commitment fees on each Commitment shall be payable monthly on
the last Business Day of each month and on the date such Commitment terminates
or is terminated. Notwithstanding anything herein to the contrary, all accrued
and unpaid commitment fees under the Existing Credit Agreement in respect of
Commitments that are continued hereunder shall be payable on the Effective Date.
2.06 Lending Offices. The Loans of each Class and Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Class and Type.
2.07 Several Obligations; Remedies Independent. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender; provided that
nothing in this sentence shall limit the recourse of the Company against such
Lender. The amounts payable by the Company at any time hereunder to each Lender
shall be a separate and independent debt and each Lender shall be entitled,
subject to Section 10 hereof in the case of any acceleration of Indebtedness
hereunder or termination of any Commitments, to protect and enforce its rights
arising out of this
Credit Agreement
<PAGE>
-35-
Agreement, and it shall not be necessary for any other Lender or the
Administrative Agent to consent to, or be joined as an additional party in, any
proceedings for such purposes.
2.08 Evidence of Debt; Registered Loans.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (a) or (b) of this Section shall (absent manifest error) be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Company to repay the Loans in accordance with the terms of this
Agreement.
(d) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form reasonably approved by the Administrative Agent, the Lender and the
Company. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 12.06
hereof) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
(e) Notwithstanding the foregoing, any Term Loan Lender that is not
a U.S. Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code may request the Company (through the Administrative Agent), and the
Company agrees thereupon, to record on the Register referred to in Section
12.06(g) hereof any Term Loans ("Registered Loans") held by such Lender under
this Agreement. A Term Loan once recorded on the Register may not be removed
from the Register so long as it remains outstanding.
2.09 Optional Prepayments and Conversions or Continuations of Loan.
Subject to Section 4.04 hereof, the Company shall have the right to prepay
Loans, or to Convert Revolving Credit Loans and Term Loans of one Type into
Loans of another Type or Continue Revolving Credit Loans and Term Loans of one
Type as Loans of the same Type, at any time or from time to time, provided that:
(a) the Company shall give the Administrative Agent (or, in the case of the
Swingline Loans, the Swingline Lender) notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 hereof (and, upon the
date specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable
Credit Agreement
<PAGE>
-36-
hereunder); (b) Eurodollar Loans may be Converted only on the last day of an
Interest Period for such Loans; (c) prepayments by the Company of the Term Loans
shall be applied pro rata to the Tranche A Term Loans and the Tranche A-1 Term
Loans; (d) prepayments by the Company of any Class of Term Loans shall be
applied to the installments of such Term Loans, first, in direct order to the
next two installments thereof and thereafter, pro rata to the remaining
installments thereof; (e) if any Swingline Loan is outstanding, the Revolving
Credit Loans may not be prepaid or converted; and (f) Swingline Loans may not be
Continued. Notwithstanding the foregoing, and without limiting the rights and
remedies of the Lenders under Section 10 hereof, in the event that any Event of
Default shall have occurred and be continuing, the Administrative Agent may (and
at the request of the Majority Lenders shall) suspend the right of the Company
to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a
Eurodollar Loan, in which event all Loans shall be Converted (on the last day(s)
of the respective Interest Periods therefor) or Continued, as the case may be,
as Base Rate Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
(a) Excess Cash Flow. Not later than the date 90 days after the end
of each fiscal year of the Company ending after the date hereof (commencing with
the fiscal year ending December 31, 2000), the Company shall prepay Loans
(and/or provide cover for Letter of Credit Liabilities as specified in paragraph
(g) below), and the Commitments shall be subject to automatic reduction, without
prepayment or commitment reduction premium other than any amounts payable
pursuant to Section 5.05 hereof, in an aggregate amount equal to the excess of
(A) the Required Percentage (as defined below) of Excess Cash Flow for such
fiscal year over (B) the aggregate amount of prepayments of Term Loans made
during such fiscal year pursuant to Section 2.09 hereof and, after the payment
in full of the Term Loans, the aggregate amount of voluntary reductions of
Revolving Credit Commitments made during such fiscal year pursuant to Section
2.04(c) hereof, such prepayment and reduction to be effected in each case in the
manner and to the extent specified in paragraph (f) of this Section 2.10.
"Required Percentage" of Excess Cash Flow for any fiscal year shall mean (i) if
the Debt to Cash Flow Ratio as of the last day of such fiscal year is greater
than 3.75 to 1, 50% and (ii) otherwise, 0%.
(b) Equity Issuance. If, at any time after the Effective Date, the
Guarantor or any of its Subsidiaries shall receive Net Available Proceeds from
one or more Equity Issuances, including all prior Equity Issuances as to which a
prepayment has not yet been made under this Section 2.10(b), the Company shall,
within three Business Days of receipt of such Net Available Proceeds, prepay
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (g) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 75% of the aggregate amount of such
Net Available Proceeds, such prepayment to be effected in each case in the
manner and to the extent specified in paragraph (f) of this Section 2.10;
provided that, notwithstanding the foregoing, without having to prepay Loans (x)
the Guarantor may apply, or cause to be applied, within 90 days from the receipt
thereof, up to $75,000,000 of the Net Available Proceeds received from one or
more Equity Issuances to finance Permitted Acquisitions, and (y) the Guarantor
and the Company may satisfy its obligations under vested management warrants and
stock options (to the extent permitted under Section 9.09 hereof) from the
proceeds of one or more Equity Issuance within 60 days after the receipt
thereof.
Credit Agreement
<PAGE>
-37-
(c) Debt Issuance. The Company shall apply the proceeds from the
Senior Subordinated Notes to the prepayment of the Loans in accordance with
paragraph (f) of this Section 2.10. In addition to the foregoing, but without
limiting the obligation of the Obligors to obtain the consent of the Majority
Lenders pursuant to Section 9.07 hereof, if, at any time after the Effective
Date, the Guarantor or any of its Subsidiaries shall receive Net Available
Proceeds from any Debt Issuance, the Company shall, within three Business Days
of receipt of such Net Available Proceeds, prepay Loans (and/or provide cover
for Letter of Credit Liabilities as specified in paragraph (g) below), and the
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to the aggregate amount of such Net Available Proceeds, such prepayment to
be effected in each case in the manner and to the extent specified in paragraph
(f) of this Section 2.10.
(d) Sale of Assets. Without limiting the obligation of the Company
to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to
any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "Current Disposition"), and
of all prior Dispositions as to which a prepayment has not yet been made under
this Section 2.10(d), shall exceed $15,000,000 then, no later than five Business
Days prior to the occurrence of the Current Disposition, the Company will
deliver to the Lenders a statement, certified by a Responsible Officer of the
Company, in form and detail reasonably satisfactory to the Administrative Agent,
of the amount of the anticipated Net Available Proceeds of the Current
Disposition and of all such prior Dispositions as to which a prepayment has not
yet been made under this Section 2.10(d) and will prepay, upon receipt of such
Net Available Proceeds, Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (g) below), and the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds of the Current Disposition and such prior Dispositions as to
which a prepayment has not been made under this Section 2.10(d) in excess of
$15,000,000, such prepayment and reduction to be effected in each case in the
manner and to the extent specified in paragraph (f) of this Section 2.10.
Notwithstanding the foregoing, neither the Disposition of Receivables by the
Company or any of its Subsidiaries to the Receivables Company or to the United
Stationers Receivables Master Trust in connection with the Receivables Financing
nor the Disposition for fair value of any Part A Property shall be a
"Disposition" for purposes of the preceding sentence. If, however, any Part B
Property is disposed of within one year prior to or after the Disposition of
Part A Property located in the same geographical area, the Company shall, within
one year of the last of such Dispositions, apply the Net Available Proceeds of
such Dispositions to (i) the purchase or construction of a replacement facility
or (ii) the prepayment of the Loans (and/or the provision of cover for Letter of
Credit Liabilities as specified in paragraph (g) below) and the reduction of
Commitments as provided above.
(e) Casualty Events. After the occurrence of any Casualty Event
(other than any Casualty Event with respect only to Property covered by the
Mortgages) resulting in a loss in excess of $500,000, the Company shall give
prompt notice thereof to the Administrative Agent and the Lenders. If no Default
has occurred and is continuing, the Company may, at its option, to be exercised
by delivery of notice to the Administrative Agent and the Lenders within four
months of such Casualty Event, elect to apply the Net Available Proceeds of such
Casualty Event to either (i) the repair or replacement of the Property affected
thereby or (ii) the prepayment of
Credit Agreement
<PAGE>
-38-
the Loans (and/or the provision of cover for Letter of Credit Liabilities as
specified in paragraph (g) of this Section 2.10) in the manner and to the extent
specified in paragraph (f) of this Section 2.10. If a Default has occurred and
is continuing, or if the Company fails to make such an election within four
months from the date of any such Casualty Event, such Net Available Proceeds
shall automatically be applied to the prepayment of the Loans in the manner and
to the extent specified in paragraph (f) of this Section 2.10 (and/or the
provision of cover for Letter of Credit Liabilities as specified in paragraph
(g) of this Section 2.10). If the Company elects to so repair or replace the
Property subject to such Casualty Event, the Net Available Proceeds of such
Casualty Event in excess of $500,000 shall be held by the Administrative Agent
to be applied to such repair or replacement and advanced to the Company in
periodic installments upon compliance by the Company with such reasonable
conditions as may be imposed by the Administrative Agent, including, but not
limited to, reasonable retentions and lien releases. Interest, if any, actually
earned on any Net Available Proceeds held by the Administrative Agent shall be
credited to such Net Available Proceeds, for the benefit of the Company.
(f) Application. Prepayments and reductions of Commitments described
in the above paragraphs of this Section 2.10 shall be effected as follows:
(i) first, the amount of the prepayment specified in such paragraphs
shall be applied to the Term Loans, pro rata between each Class of Term
Loans and, as to each Class, pro rata to the remaining installments
thereof; and
(ii) second, the Revolving Credit Commitments shall be automatically
reduced in an amount equal to the amount by which the aggregate amount of
the prepayments and reductions of Commitments provided for above exceed
any excess over the amount referred to in the foregoing clause (i) (and to
the extent that, after giving effect to such reduction of Commitments, the
aggregate principal amount of Revolving Credit Loans, together with the
aggregate principal amount of the Swingline Loans and the aggregate amount
of all Letter of Credit Liabilities, would exceed the Revolving Credit
Commitments, the Company shall, first, prepay Swingline Loans, second,
prepay Revolving Credit Loans and, third, provide cover for Letter of
Credit Liabilities as specified in paragraph (g) below, in an aggregate
amount equal to such excess).
(g) Cover for Letter of Credit Liabilities. In the event that the
Company shall be required pursuant to this Section 2.10, or pursuant to Section
10 hereof, to provide cover for Letter of Credit Liabilities, the Company shall
effect the same by paying to the Administrative Agent immediately available
funds in an amount equal to the required amount, which funds shall be retained
by the Administrative Agent in the Collateral Account (as provided therein as
collateral security in the first instance for the Letter of Credit Liabilities)
until such time as the Letters of Credit shall have been terminated and all of
the Letter of Credit Liabilities paid in full.
Credit Agreement
<PAGE>
-39-
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) Revolving Credit Loans. The Company hereby promises to pay to
the Administrative Agent for account of each Revolving Credit Lender the entire
outstanding principal amount of such Lender's Revolving Credit Loans, and each
Revolving Credit Loan shall mature, on the Revolving Credit Commitment
Termination Date.
(b) Tranche A Term Loans. The Company hereby promises to pay to the
Administrative Agent for account of the Tranche A Term Loan Lenders the
aggregate principal amount of the Tranche A Term Loans in sixteen consecutive
installments payable on each Quarterly Date, beginning with the Quarterly Date
ending on June 30, 2000, the first four of which shall be in equal installments
of $2,607,354.17, the next four of which shall be in equal installments of
$3,128,875.00, the next seven of which shall be in equal installments of
$3,650,295.83 and the last payment of which shall each be in the amount of
$3,650,094.83.
(c) Tranche A-1 Term Loans. The Company hereby promises to pay to
the Administrative Agent for account of the Tranche A-1 Term Loan Lenders the
aggregate principal amount of the Tranche A-1 Term Loans in twenty consecutive
quarterly installments payable on each Quarterly Date, beginning with the
Quarterly Date ending on September 30, 2000, the first four of which shall each
be in equal installments of $6,250,000 and the remaining sixteen which shall
each be in equal installments of $7,812,500.
3.02 Interest. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan (including any Swingline Loan) made by such Lender for the
period from and including the date of such Loan to but excluding the date such
Loan shall be paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan (other than
a Swingline Loan), the Base Rate (as in effect from time to time) plus the
Applicable Margin,
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period plus the Applicable Margin, and
(c) if such Loan is a Swingline Loan, the Swingline Rate (as in
effect from time to time) plus the Applicable Margin (determined as if
such Swingline Loans were Revolving Credit Loans that were Base Rate
Loans).
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation owed to such Lender and on any other amount payable by
the Company hereunder to or for account of such Lender, that shall not be paid
in full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date thereof
to but
Credit Agreement
<PAGE>
-40-
excluding the date the same is paid in full. Accrued interest on each Loan shall
be payable (i) in the case of a Base Rate Loan, quarterly on the Quarterly
Dates, (ii) in the case of a Eurodollar Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than three months, at
three-month intervals following the first day of such Interest Period, (iii) in
the case of a Swingline Loan, on the last day of each calendar month during
which such Swingline Loan shall be outstanding, and (iv) in the case of any Loan
(including any Swingline Loan), upon the payment or prepayment thereof or the
Conversion of such Loan to a Loan of another Type (but only on the principal
amount so paid, prepaid or Converted), except that interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after
the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall give notice thereof to the Lenders to
which such interest is payable and to the Company. Notwithstanding anything
herein to the contrary, all accrued and unpaid interest on the "Loans" under the
Existing Credit Agreement that are continued hereunder shall be payable on the
date or dates specified in this Section 3.02.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Obligors under this Agreement, and, except to the extent otherwise provided
therein, all payments to be made by the Obligors under any other Credit
Document, shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to the Administrative Agent at an account
designated by the Administrative Agent with Chase at the Principal Office, not
later than 1:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary deposit account of either Obligor with such
Lender (with notice to such Obligor and the Administrative Agent).
(c) Each Obligor shall, at the time of making each payment under
this Agreement for account of any Lender, specify to the Administrative Agent
(which shall so notify the intended recipient(s) thereof) the Loans,
Reimbursement Obligations or other amounts payable hereunder to which such
payment is to be applied (and in the event that such Obligor fails to so
specify, or if an Event of Default has occurred and is continuing, such payment
shall be, subject to Section 4.02 hereof, applied first to the Swingline Lender
(to the extent any amounts are then due and payable to the Swingline Lender on
account of any Swingline Loan) and then in payment of amounts due under this
Agreement in such manner as the Administrative Agent or the Majority Lenders,
subject to Section 4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03(e) hereof, each payment received by the Administrative Agent under
this Agreement for account of any Lender shall be paid by the Administrative
Agent promptly to such Lender, in immediately
Credit Agreement
<PAGE>
-41-
available funds, for account of such Lender's Applicable Lending Office for the
Loan or other obligation in respect of which such payment is made.
(e) Except to the extent otherwise provided herein, if the due date
of any payment under this Agreement would otherwise fall on a day that is not a
Business Day, such date shall be extended to the next succeeding Business Day,
and interest shall be payable for any principal so extended for the period of
such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 hereof shall be made from the relevant Lenders, each payment of
commitment fee under Section 2.05 hereof in respect of the Commitments of a
particular Class shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class
under Section 2.04 hereof shall be applied to the respective Commitments of such
Class of the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class; (b) except as otherwise provided in
Section 5.04 hereof, Eurodollar Loans of any Class having the same Interest
Period shall be allocated pro rata among the relevant Lenders according to the
amounts of their respective Revolving Credit Commitments and Term Loan
Commitments (in the case of the making of Term Loans and Revolving Credit Loans
made to refinance Swingline Loans) or their respective Revolving Credit Loans
and Term Loans (in the case of Conversions and Continuations of Loans); (c) each
payment or prepayment of principal of Loans of a particular Class shall be made
for account of the relevant Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans of such Class held by them; and (d) each
payment of interest on Loans of a particular Class shall be made for account of
the relevant Lenders pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders. Notwithstanding the
foregoing, borrowings, payments and prepayments of Swingline Loans shall be made
without regard to the foregoing provisions of this Section 4.02.
4.03 Computations. Interest on Eurodollar Loans and Reimbursement
Obligations and commitment fees and letter of credit fees shall be computed on
the basis of a year of 360 days and actual days elapsed (including the first day
but, except as otherwise provided in Section 2.03(g) hereof, excluding the last
day) occurring in the period for which payable and interest on Base Rate Loans
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant
to Section 2.10 hereof and Conversions or prepayments made pursuant to Section
5.04 hereof, and each borrowing, Conversion and partial prepayment of principal
of Loans (other than Swingline Loans and Revolving Credit Loans made to
refinance Swingline Loans) shall be in an aggregate amount at least equal to
$5,000,000 or a larger multiple of $1,000,000 (borrowings, Conversions or
prepayments of or into Loans of different Types or, in the case of Eurodollar
Loans, having different Interest Periods at the same time hereunder to be deemed
separate borrowings, Conversions and prepayments for purposes of the foregoing,
one for each Type or Interest
Credit Agreement
<PAGE>
-42-
Period), provided that the aggregate principal amount of Eurodollar Loans having
the same Interest Period shall be in an amount at least equal to $10,000,000 or
a larger multiple of $1,000,000 and, if any Eurodollar Loans would otherwise be
in a lesser principal amount for any period, such Loans shall be Base Rate Loans
during such period. Each borrowing of Swingline Loans pursuant to Section
2.01(d) hereof shall be in an aggregate amount at least equal to $500,000 or in
multiples of $100,000 in excess thereof and each partial prepayment of Swingline
Loans shall be in an aggregate amount at least equal to $100,000 or in multiples
of $100,000 in excess thereof.
4.05 Certain Notices. Notices by the Company to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
(or the Swingline Lender, as the case may be) not later than 11:00 a.m. (in the
case of notices in respect of Eurodollar Loans), 12:00 noon (in the case of
notices in respect of Base Rate Loans) and 2:00 p.m. (in the case of notices in
respect of Swingline Loans), New York time, on the number of Business Days prior
to the date of the relevant termination, reduction, borrowing, Conversion,
Continuation or prepayment or the first day of such Interest Period specified
below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Borrowing or prepayment of
Swingline Loans or termination
or reduction of Swingline
Commitment same day
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the
Credit Agreement
<PAGE>
-43-
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the Company fails to
select the Type of Loan, or the duration of any Interest Period for any
Eurodollar Loan, within the time period and otherwise as provided in this
Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Company (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if
such recipient(s) shall fail promptly to make such payment, the Administrative
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative Agent
within three Business Days of the Advance Date, then, retroactively to the
Advance Date, the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be made by
the Company to the Lenders, the Company and the recipient(s) shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment at the Post-Default Rate (without duplication of the
obligation of the Company under Section 3.02 hereof to pay interest on the
Required Payment at the Post-Default Rate), it being understood that the
return by the recipient(s) of the Required Payment to the Administrative
Agent shall not limit such obligation of the Company under said Section
3.02 to pay interest at the Post-Default Rate in respect of the Required
Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to the Company, the Payor and the Company shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to Section 3.02 hereof, it being
understood that the return by the Company of
Credit Agreement
<PAGE>
-44-
the Required Payment to the Administrative Agent shall not limit any claim
the Company may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, provided that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or in respect of its interest in any Swingline Loan or payment of
any other amount under this Agreement or any other Credit Document through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise (other than from the Administrative Agent as provided herein), and,
as a result of such payment, such Lender shall have received a greater
percentage of the principal of or interest on the Loans of such Class or Letter
of Credit Liabilities or in respect of its interest in any Swingline Loan or
such other amounts then due hereunder or thereunder by such Obligor to such
Lender than the percentage received by any other Lender, it shall promptly
purchase from such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans of such Class or Letter
of Credit Liabilities or such other amounts, respectively, owing to such other
Lenders (or in interest due thereon, as the case may be) in such amounts, and
make such other adjustments from time to time as shall be equitable, to the end
that all the Lenders shall share the benefit of such excess payment (net of any
expenses that may be incurred by such Lender in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal of and/or
interest on the Loans of such Class, interest in the Swingline Loans or Letter
of Credit Liabilities or such other amounts, respectively, owing to each of the
Lenders. To such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable,
Credit Agreement
<PAGE>
-45-
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs
(a) The Company shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be reasonably necessary to
compensate such Lender for any costs that such Lender determines, in good faith,
are attributable to its making or maintaining of any Eurodollar Loans or its
obligation to make any Eurodollar Loans hereunder, or any reduction in any
amount receivable by such Lender hereunder in respect of any of such Eurodollar
Loans or such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of such
Loans or changes the basis of taxation of any amounts payable to such
Lender under this Agreement in respect of any of such Loans (excluding
changes in the rate of tax on the overall net income of such Lender or of
such Applicable Lending Office by the jurisdiction in which such Lender
has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender
(including, without limitation, the Commitments of such Lender hereunder);
or
(iii) imposes any other condition affecting this Agreement (or any
of such extensions of credit or liabilities) or its Commitments.
If any Lender requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 hereof shall be applicable), provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of paragraph (a)
of this Section 5.01 (but without duplication), in the event that, by reason of
any Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on Eurodollar Loans is determined as
Credit Agreement
<PAGE>
-46-
provided in this Agreement or a category of extensions of credit or other assets
of such Lender that includes Eurodollar Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the Company (with a copy
to the Administrative Agent), the obligation of such Lender to make or Continue,
or to Convert Base Rate Loans into, Eurodollar Loans hereunder shall be
suspended until such Regulatory Change ceases to be in effect (in which case the
provisions of Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) of any
court or governmental or monetary authority (i) following any Regulatory Change
or (ii) implementing any risk-based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or governmental
or supervisory authority implementing at the national level the Basle Accord
(including, without limitation, the Final Risk-Based Capital Guidelines of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix
A; 12 C.F.R. Part 225, Appendix A) and the Final Risk-Based Capital Guidelines
of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix
A)), of capital in respect of its Commitments or Loans (such compensation to
include, without limitation, an amount equal to any reduction of the rate of
return on assets or equity of such Lender (or any Applicable Lending Office or
such bank holding company) to a level below that which such Lender (or any
Applicable Lending Office or such bank holding company) could have achieved but
for such law, regulation, interpretation, directive or request). For purposes of
this Section 5.01(c) and Section 5.06 hereof, "Basle Accord" shall mean the
proposals for risk-based capital framework described by the Basle Committee on
Banking Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital Standards" dated
July 1988, as amended, modified and supplemented and in effect from time to time
or any replacement thereof.
(d) Each Lender shall notify the Company of any event occurring
after the date hereof entitling such Lender to compensation under paragraph (a)
or (c) of this Section 5.01 as promptly as practicable, but in any event within
45 days, after such Lender obtains actual knowledge thereof; provided that (i)
if any Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States
Credit Agreement
<PAGE>
-47-
of America. Each Lender will furnish to the Company a certificate setting forth
the basis and amount of each request by such Lender for compensation under
paragraph (a) or (c) of this Section 5.01. Determinations and allocations by any
Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) or (b) of this Section 5.01, or of the effect of
capital maintained pursuant to paragraph (c) of this Section 5.01, on its costs
or rate of return of maintaining Loans or its obligation to make Loans, or on
amounts receivable by it in respect of Loans, and of the amounts required to
compensate such Lender under this Section 5.01, shall be conclusive, provided
that such determinations and allocations are made on a good faith reasonable
basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall
be conclusive if made in good faith, that quotations of interest rates for
the relevant deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining rates
of interest for Eurodollar Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders or, if the related Loans are Term Loans, the
Majority Term Loan Lenders determine, which determination shall be
conclusive if made in good faith, and notify the Administrative Agent that
the relevant rates of interest referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 hereof upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to such Lenders of
making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the
Company shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof. The Administrative
Agent shall upon notice from the Majority Lenders that any such conditions are
no longer in effect promptly withdraw any such notice delivered in connection
with this Section 5.02.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Company thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable).
Credit Agreement
<PAGE>
-48-
5.04 Treatment of Affected Loans. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion required by Section 5.01(b) or 5.03
hereof, on such earlier date as such Lender may specify to the Company with a
copy to the Administrative Agent) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 5.01 or 5.03
hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Company with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
5.05 Compensation. The Company shall pay to the Administrative Agent
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10 hereof)
on a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have
Credit Agreement
<PAGE>
-49-
accrued on the principal amount so paid, prepaid, Converted or not borrowed for
the period from the date of such payment, prepayment, Conversion or failure to
borrow to the last day of the then current Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the amount of interest
that otherwise would have accrued on such principal amount at a rate per annum
equal to the interest component of the amount such Lender would have bid in the
London interbank market for Dollar deposits of leading banks in amounts
comparable to such principal amount and with maturities comparable to such
period (as reasonably determined by such Lender).
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Company under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Company shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Company shall be conclusive if made
in good faith and in the absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
(a) The Company agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person hereunder after deduction for or
withholding in respect of any U.S. Taxes (other than U.S. Taxes attributable to
payments that are effectively connected with the conduct of a trade or business
within the United States of America, within the meaning of Section 864 of the
Code as in effect on the date hereof, provided that the mere participation in
the transactions contemplated hereby by a foreign office of a Lender shall not
alone be deemed to result in income so connected) imposed with respect to such
payment (or, upon the failure of the Company properly to make any such deduction
or withholding required by applicable law, payment by each Lender that is not a
U.S. Person of such U.S. Taxes that should have been deducted or withheld), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
Credit Agreement
<PAGE>
-50-
(i) to any payment to any Lender hereunder (other than in respect of
any Registered Loan) unless such Lender is, on the date hereof (or on the
date it becomes a Lender hereunder as provided in Section 12.06(b)
hereof), on the date of each payment hereunder and on the day after any
change in the Applicable Lending Office of such Lender, entitled to submit
either a Form W-8BEN, Form W-8IMY (relating to such Lender and entitling
it to a complete exemption from withholding on all interest to be received
by it hereunder in respect of the Loans) or a Form W-8ECI (relating to all
interest to be received by such Lender hereunder in respect of the Loans),
unless such inability is due to a change of law (including but not limited
to any change in any applicable treaty, statute, regulation or ruling or
judicial or administrative interpretation of any of the foregoing) after
the date hereof (or the date it became a Lender hereunder as provided in
Section 12.06(b) hereof),
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "Registered Holder"), unless such Registered Holder
(or, if such Registered Holder is not the beneficial owner of such
Registered Loan, the beneficial owner thereof) is, on the date hereof (or
on the date such Registered Holder becomes a Lender as provided in Section
12.06(b) hereof), on the date of each payment hereunder and on the day
after any change in the Applicable Lending Office of such Lender, entitled
to submit a Form W-8BEN or Form W-8IMY, together with an annual
certificate stating that (x) such Registered Holder (or beneficial owners,
as the case may be) is/are not a "bank" extending credit in the ordinary
course of business within the meaning of Section 881(c)(3)(A) of the Code,
is not a resident in a foreign country specified in a notice published
under Sections 871(h)(6) or 881(c)(6) of the Code and is not a 10%
shareholder of the Company within the meaning of Section 881(c)(3)(B) of
the Code, unless such Registered Holder, or beneficial owners as the case
may be, is/are not so entitled by reason of a change of law (including but
not limited to any change in any applicable treaty, statute, regulation or
ruling, or judicial or administrative interpretation of any of the
foregoing) occurring after the date hereof (or the date the Registered
Holder or beneficial owner, as the case may be, became a Registered Holder
or beneficial owner) and (y) such Registered Holder (or beneficial owner,
as the case may be) shall promptly notify the Company if at any time, such
Registered Holder (or beneficial owner, as the case may be) determines
that it is no longer in a position to provide such certificate to the
Company (or any other form of certification adopted by the relevant taxing
authorities of the United States of America for such purposes), or
(iii) to any U.S. Taxes imposed solely by reason of the failure by
such non-U.S. Person (or, if such non-U.S. Person is not the beneficial
owner of the relevant Loan, such beneficial owner) to comply with (x)
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of America of such non-U.S. Person (or
beneficial owner, as the case may be) if such compliance is required by
statute or regulation of the United States of America as a precondition to
relief or exemption from such U.S. Taxes and (y) this Section 5.07(a).
Credit Agreement
<PAGE>
-51-
For the purposes of this Section 5.07(a), (A) "Form W-8BEN" shall mean Form
W-8BEN (Certificate of Foreign Status of Beneficial Owner for United States Tax
Withholding) of the Department of the Treasury of the United States of America
(B) "Form W-8IMY" shall mean Form W-8IMY (Certificate of Foreign Intermediary,
Partnership or Certain U.S. Branches of the Department of the Treasury) together
with any tax forms required to be attached thereto and (C) "Form W-8ECI" shall
mean Form W-8ECI (Certificate of Foreign Person's Claim for Exemption from
Withholding on Income Effectively Connected with the Conduct of a Trade or
Business in the United States) of the Department of the Treasury of the United
States of America. Each of the Forms referred to in the foregoing clauses (A),
(B) and (C) shall include such successor and related forms as may from time to
time be adopted by the relevant taxing authorities of the United States of
America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Company
shall deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence reasonably satisfactory to such Person of such deduction, withholding
or payment (as the case may be).
(c) If any Lender shall be entitled to compensation under this
Section 5.07, such Lender, within a reasonable time after becoming entitled to
such compensation, shall (unless otherwise required by a governmental authority
or as a result of any law, rule, regulation, order or similar directive
applicable to such Lender) designate a different Applicable Lending Office from
that initially selected by such Lender to which payments are to be made under
the Credit Documents, if such designation would avoid the need for (or reduce
the amount of) such compensation and would not, in the sole opinion of such
Lender, be otherwise disadvantageous to such Lender.
5.08 Replacement of Lenders. If any Lender defaults in its
obligation to make Loans under Section 2.01 hereof or requests compensation
pursuant to Section 5.01, 5.06 or 5.07 hereof, or any Lender's obligation to
make or Continue, or to Convert Loans of any Type into, any other Type of Loan
shall be suspended pursuant to Section 5.01 or 5.03 hereof (any such Lender so
defaulting or requesting such compensation or whose obligations are so
suspended, being herein called a "Relevant Lender"), the Company, upon three
Business Days notice given when no Default shall have occurred and be
continuing, may require that such Relevant Lender transfer all of its right,
title and interest under this Agreement to any bank or other financial
institution identified by the Company that is satisfactory to the Administrative
Agent, in its discretion reasonably exercised (a "Proposed Lender") if (i) such
Proposed Lender agrees to assume all of the obligations of such Relevant Lender
hereunder, and to purchase all of such Relevant Lender's Loans hereunder for
consideration equal to the aggregate outstanding principal amount of such
Relevant Lender's Loans, together with interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Relevant
Lender of all other amounts payable hereunder to such Relevant Lender on or
prior to the date of such transfer (including any fees accrued hereunder and any
amounts that would be payable under Section 5.05 hereof as if all of such
Relevant Lender's Loans were being prepaid in full on such date) and (ii) such
Relevant Lender has requested compensation pursuant to Section 5.01, 5.06 or
Credit Agreement
<PAGE>
-52-
5.07 hereof, such Proposed Lender's aggregate requested compensation, if any,
paid pursuant to Section 5.01, 5.06 or 5.07 hereof with respect to such Relevant
Lender's Loans is lower than that of the Relevant Lender. Subject to the
provisions of Section 12.06(b) hereof, such Proposed Lender shall be a "Lender"
for all purposes hereunder. Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements of the Company contained in
Sections 5.01, 5.06, 5.07 and 12 hereof (without duplication of any payments
made to such Relevant Lender by the company or the Proposed Lender) shall
survive for the benefit of such Relevant Lender under this Section 5.08 with
respect to the time prior to such replacement.
Section 6. Guarantee.
6.01 The Guarantee. The Guarantor hereby guarantees to each Lender
and the Administrative Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
the Company and all other amounts from time to time owing to the Lenders or the
Agent by the Company under this Agreement and by the Company under any of the
other Credit Documents, and all obligations of the Company to any Lender (or any
Affiliate thereof) in respect of any Hedging Agreement or in respect of any cash
management services, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantor hereby further agrees that if the Company shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Guarantor will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.02 Obligations Unconditional. The obligations of the Guarantor
under Section 6.01 hereof are absolute and unconditional irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Company under this Agreement or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor (other than payment in full of the
Guaranteed Obligations), it being the intent of this Section 6.02 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following shall not
alter or impair the liability of the Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
Credit Agreement
<PAGE>
-53-
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein or therein shall
be waived or any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in whole or in part
or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Company under this Agreement or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Guarantor under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Obligor in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise and the Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
6.04 Subrogation. The Guarantor hereby waives, until payment in full
of the Guaranteed Obligations, all rights of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under the Bankruptcy Code) or otherwise by reason of any
payment by it pursuant to the provisions of this Section 6.
6.05 Remedies. The Guarantor agrees that, as between the Guarantor
and the Lenders, the obligations of the Company under this Agreement may be
declared to be forthwith due and payable as provided in Section 10 hereof (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 10) for purposes of Section 6.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by the Guarantor for purposes of said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
<PAGE>
-54-
Section 7. Conditions Precedent.
7.01 Effectiveness. The effectiveness of this Agreement (and the
amendment and restatement of the Existing Credit Agreement to be effected
hereby) is subject to the receipt by the Administrative Agent of the following
documents, each of which shall be satisfactory to the Administrative Agent (and
to the extent specified below, to each Lender) in form and substance:
(a) Corporate Documents. The following documents, each certified as
indicated below:
(i) for each of the Credit Parties, a certificate from the
Secretary of State of such Credit Party's jurisdiction of
incorporation dated as of a date reasonably close to the Effective
Date as to the good standing of and charter documents filed by such
Person;
(ii) for each of the Credit Parties, a certificate of the
Secretary or an Assistant Secretary of such Person, dated the
Effective Date and certifying (A) that attached thereto is a true
and complete copy of the charter (or equivalent documents) of such
Person as amended and in effect at all times from the date on which
the resolutions referred to in clause (C) were adopted, (B) that
attached thereto is a true and complete copy of the by-laws of such
Person as amended and in effect at all times from the date on which
the resolutions referred to in clause (C) were adopted, (C) that
attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors of such Person authorizing the
execution, delivery and performance of such of the Credit Documents
to which such Person is or is intended to be a party and the
extensions of credit hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect
and (D) as to the incumbency and specimen signature of each officer
of such Person executing such of the Credit Documents to which such
Person is intended to be a party and each other document to be
delivered by such Person from time to time in connection therewith
(and the Administrative Agent and each Lender may conclusively rely
on such certificate until it receives notice in writing from such
Person); and
(iii) for each of the Credit Parties, a certificate of another
officer of such Person, dated the Effective Date, as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary, as the case may be, of such Person at the time of
execution of the certificate referred to in clause (ii) above.
(b) Officer's Certificate. A certificate of a senior officer or
Responsible Officer of the Guarantor, dated the Effective Date, to the
effect set forth in clauses (a) and (b) of Section 7.02 hereof.
(c) Opinions of Counsel to the Obligors. Opinions, dated the
Effective Date, of (i) the General Counsel of the Guarantor, substantially
in the form of Exhibit E-1 hereto and covering such other matters as the
Administrative Agent or any Lender may
Credit Agreement
<PAGE>
-55-
reasonably request (and each Obligor hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent) and (ii)
Weil, Gotshal & Manges LLP, special New York counsel to the Credit
Parties, substantially in the form of Exhibit E-2 hereto and covering such
other matters as the Administrative Agent or any Lender may reasonably
request (and each Obligor hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion, dated
the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New
York counsel to Chase, substantially in the form of Exhibit F hereto.
(e) Pledge Agreement. The Pledge Agreement, duly executed and
delivered by the Guarantor and the Administrative Agent.
(f) Security Agreement. The Security Agreement, duly executed and
delivered by the Company and the Administrative Agent.
(g) Subsidiary Guarantee and Security Agreement. The Subsidiary
Guarantee and Security Agreement, duly executed and delivered by each of
the Subsidiary Guarantors in existence on the Effective Date.
(h) Mortgages. Amendments, if any, to the existing Mortgages duly
executed and delivered by the Company or a Subsidiary Guarantor, as
applicable, and amendments or endorsements, if any, to the policies of
title insurance heretofore issued to the Administrative Agent in respect
of the real Property subject to such Mortgages, as the Administrative
Agent shall reasonably request (or arrangements for subsequent delivery
thereof satisfactory to the Administrative Agent shall have been made).
(i) Lien Searches. The results of a recent search, by a Person
satisfactory to the Administrative Agent, of Uniform Commercial Code,
judgment and tax lien filings in each relevant jurisdiction where Property
of the Credit Parties is located, and the results of such search shall
reveal no Liens on any of the Property of the Credit Parties except for
those permitted under Section 9.06 hereof or Liens to be discharged on or
prior to the Effective Date pursuant to documentation satisfactory to the
Administrative Agent and all UCC financing statements shall have been
delivered to the Administrative Agent for filing (or arrangements for
subsequent delivery thereof satisfactory to the Administrative Agent shall
have been made).
(j) Pro Forma Balance Sheet. A satisfactory Pro Forma consolidated
balance sheet of the Guarantor as of March 31, 2000, adjusted to give
effect to the redemption of the Company's 12-3/4% Senior Subordinated
Notes due May 1, 2005 in an aggregate original principal amount of
$100,000,000 and the financings contemplated hereby.
(k) Payment of Fees, Expenses and Other Amounts. Payment to the
Administrative Agent for account of the relevant Person of all fees and
expenses and all other amounts required to be paid hereunder on the
Effective Date, together with the non-pro rata prepayment of principal of,
and accrued and unpaid interest on, all loans
Credit Agreement
<PAGE>
-56-
outstanding under the Existing Credit Agreement held by any Existing
Lender which is not a Lender party to this Agreement and any other amounts
owing to such Existing Lender under the Existing Credit Agreement (and
upon such prepayment, such Existing Lender's commitments under the
Existing Credit Agreement shall have been terminated) and each Existing
Lender party to this Agreement hereby authorizes the Company to effect the
foregoing.
(l) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to the Administrative
Agent reasonably request.
7.02 Initial and Subsequent Extensions of Credit. The obligation of
the Lenders to make any Loan or otherwise extend any credit to the Company upon
the occasion of each borrowing or other extension of credit hereunder (including
the initial borrowings and continuation of the Term Loans and the Revolving
Credit Loans contemplated to occur on the Effective Date) is subject to the
further conditions precedent that, both immediately prior to the making of such
Loan or other extension of credit and also after giving effect thereto and to
the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by each Obligor in
Section 8 hereof and in each other Credit Document to which such Obligor
is a party, shall be true and complete in all material respects on and as
of the date of the making of such Loan or other extension of credit (and
after giving effect thereto) with the same force and effect as if made on
and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Company hereunder shall constitute a certification by the Company to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Company otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. Each Obligor represents
and warrants to the Administrative Agent and the Lenders that:
8.01 Corporate Existence. Each Obligor and its Subsidiaries: (a) is
a corporation, partnership or other entity duly organized or formed, validly
existing and in good standing under the laws of the jurisdiction of its
organization or formation; (b) has all requisite corporate or other power, and
has all material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could
(either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect.
Credit Agreement
<PAGE>
-57-
8.02 Financial Condition. (a) The Obligors have heretofore furnished
to each of the Lenders the following:
(i) the consolidated pro forma balance sheet of the Guarantor and
its Subsidiaries referred to in Section 7.01(j) hereof; and
(ii) the consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 1999 and the related consolidated
statements of income, changes in stockholders' investment and cash flows
of the Guarantor and its Subsidiaries for the fiscal year ended on said
date, with the opinion thereon of Ernst & Young LLP.
(b) The financial statements referred to in clause (a)(ii) above
fairly present, in all material respects the consolidated financial position of
the Guarantor and its Subsidiaries as at said dates and the consolidated results
of their respective operations for the fiscal years and periods ended on said
dates, in accordance with generally accepted accounting principles and practices
applied on a consistent basis. None of the Guarantor or its Subsidiaries has on
the date hereof any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected or provided
for in said consolidated balance sheet as at December 31, 1999. Since December
31, 1999, there has been no material adverse change in the consolidated
financial condition, operations, business or prospects taken as a whole of the
Guarantor and its Subsidiaries from that set forth in the financial statements
referred to in clause (a)(ii) above as at said date.
8.03 Litigation. Except as disclosed to the Lenders in Schedule V
hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of any Obligor) threatened against either Obligor or any of its
Subsidiaries that, if adversely determined, could (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
8.04 No Breach. None of the making or performance of this Agreement
and the other Credit Documents, the consummation of the transactions herein and
therein contemplated or compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent not
already obtained under, the charter or by-laws of either Obligor or any of its
Subsidiaries, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
material agreement or instrument to which either Obligor or any such Subsidiary
is a party or by which any of them or any of their Property is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, or (except for the Liens created pursuant to the Security Documents)
result in the creation or imposition of any Lien upon any Property of either
Obligor or any such Subsidiary pursuant to the terms of any such agreement or
instrument.
8.05 Action. Each Obligor and each of its Subsidiaries has all
necessary corporate power, authority and legal right to execute, deliver and
perform its obligations hereunder and under each of the other Credit Documents
to which it is a party; the execution, delivery and performance by each Obligor
and each such Subsidiary of each of the Credit Documents to which it is a party
have been duly authorized by all necessary corporate or other
Credit Agreement
<PAGE>
-58-
action on its part (including, without limitation, any required shareholder
approvals, if necessary); and this Agreement has been duly and validly executed
and delivered by such Obligor and (assuming the due authorization, execution and
delivery thereof by the Administrative Agent, the Lenders and the other parties
(other than an Obligor) thereto) constitutes, and each of the other Credit
Documents to which it is a party when executed and delivered by such Obligor or
such Subsidiary will constitute, its legal, valid and binding obligation,
enforceable against such Obligor and/or such Subsidiary, as the case may be, in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the rights
of creditors generally and except as such enforceability may be limited by the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8.06 Approvals. No authorizations, approvals or consents not already
duly obtained of, and no filings or registrations with, any governmental or
regulatory authority or agency, or any securities exchange, are necessary for
the execution, delivery or performance by either Obligor or any of its
Subsidiaries of the Credit Documents to which it is a party or for the legality,
validity or enforceability hereof or thereof, except for (i) filings and
recordings in respect of the Liens created pursuant to the Security Documents
and (ii) immaterial state and municipal licenses such as business licenses, food
sales establishment licenses, required registrations with state revenue
departments and other similar ministerial licenses.
8.07 Use of Credit. Neither Obligor nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock. Neither the making of any of the Loans
hereunder nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulation U or X.
8.08 ERISA. Each Plan and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which either Obligor would be
under an obligation to furnish a report to the Lenders under Section 9.01(e)
hereof. As of the date of this Agreement, and for the year preceding the date of
this Agreement, no Obligor has contributed to any Multiemployer Plan.
8.09 Taxes. Except as set forth on Schedule VI hereto, the Guarantor
and its Subsidiaries are members of an affiliated group of corporations filing
consolidated returns for Federal income tax purposes, of which the Guarantor is
the "common parent" (within the meaning of Section 1504 of the Code) of such
group. Except as set forth on Schedule VI hereto, the Guarantor and its
Subsidiaries have filed all Federal income tax returns and all other material
tax returns that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Guarantor
or any such Subsidiary, except (a) for any such tax the payment of which is
being contested in good faith and by proper proceedings and against which
adequate reserves are being maintained, provided that except to the extent set
forth in Schedule VI hereto no such tax is being contested on the Effective Date
or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect. The charges, accruals and reserves on
the books of the Guarantor and its
Credit Agreement
<PAGE>
-59-
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Guarantors, adequate. Except as set forth in Schedule VI hereto,
neither the Guarantor nor any of its Subsidiaries has given or been requested to
give a waiver of the statute of limitations relating to the payment of any
Federal, state, local and foreign taxes or other impositions.
8.10 Investment Company Act. Neither the Guarantor nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 Public Utility Holding Company Act. Neither the Guarantor nor
any of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to
Indebtedness of the Guarantor and its Subsidiaries outstanding on the date
hereof, and the aggregate principal or face amount outstanding or that may
become outstanding under each such arrangement is correctly described in Part A
of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof, or
that (after giving effect to the transactions contemplated to occur on or before
the Effective Date) will be outstanding on the Effective Date (other than the
Liens created in connection with this Agreement), the aggregate principal or
face amount of which equals or exceeds (or may equal or exceed) $10,000 and
covering any Property of the Guarantor or any of its Subsidiaries, and the
aggregate Indebtedness secured (or which may be secured) by each such Lien and
the Property covered by each such Lien is correctly described in Part B of said
Schedule I.
8.13 Environmental Matters. Except as set forth on Schedule II
hereto,
(a) Each of the Guarantor and its Subsidiaries has obtained all
environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws (collectively,
"Environmental Permits") to carry on its business as now being or as
proposed to be conducted, except to the extent failure to have any such
Environmental Permit would not (either individually or in the aggregate)
have a Material Adverse Effect. Each of such Environmental Permits is in
full force and effect and each of the Guarantor and its Subsidiaries is in
compliance with the terms and conditions thereof, and is also in
compliance with all other applicable Environmental Laws, decrees,
judgments, and injunctions, except to the extent failure to comply
therewith would not (either individually or in the aggregate) have a
Material Adverse Effect.
(b) No notice, notification, demand, request for information,
citation, summons or order is pending, no complaint is pending, no penalty
has been assessed and is
Credit Agreement
<PAGE>
-60-
outstanding and no investigation or review is pending or, to the
Guarantor's knowledge, threatened by any governmental or other entity with
respect to any alleged failure by the Guarantor or any of its Subsidiaries
to have any Environmental Permit or with respect to any generation,
treatment, storage, recycling, transportation or any Release of any
Hazardous Materials generated by the Guarantor or any of its Subsidiaries
that could reasonably be expected to result in a liability in excess of
$10,000.
(c) Neither the Guarantor nor any of its Subsidiaries owns, operates
or leases a treatment, storage or disposal facility requiring a permit
under the Resource Conservation and Recovery Act of 1976, as amended, or
under any comparable state or local statute.
(d) There is not now nor, to the Guarantor's knowledge, has there
been in the past any PCBs, asbestos containing materials ("ACMs"), surface
impoundments or underground storage tanks at any real Property now or, to
the Guarantor's knowledge, previously owned, operated or leased by the
Guarantor or any of its Subsidiaries, the presence of which could
reasonably be expected to result in a liability in excess of $10,000.
(e) No Hazardous Materials have been otherwise Released at, on or
under any site or facility now or previously owned, operated or leased by
the Guarantor or any of its Subsidiaries that would (either individually
or in the aggregate) have a Material Adverse Effect.
(f) Neither the Guarantor nor any of its Subsidiaries has received a
notice alleging that it is a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion on the National
Priorities List ("NPL") by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information System, as
provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any similar state
or local list.
(g) No written notification of a Release of a Hazardous Material has
been filed by or on behalf of the Guarantor or any of its Subsidiaries and
no site or facility now or, to the Guarantor's knowledge, previously
owned, operated or leased by the Guarantor or any of its Subsidiaries is
listed or proposed for listing on the NPL, CERCLIS or any similar state
list of sites requiring investigation or clean-up.
(h) No Liens exist under or pursuant to any Environmental Laws on
any real Property owned or operated by the Guarantor or any of its
Subsidiaries, and no government action has been taken or is in process
that could subject any such site or facility to such Liens and, to the
best knowledge of the Guarantor, neither the Guarantor nor any of its
Subsidiaries would be required to place any notice or restriction relating
to the presence of Hazardous Materials at any site or facility owned by it
in any deed to the real Property on which such site or facility is
located.
(i) All environmental investigations, studies, audits, tests,
reviews or other analyses conducted by or that are in the possession of
the Guarantor or any of its
Credit Agreement
<PAGE>
-61-
Subsidiaries in relation to facts, circumstances or conditions at or
affecting any site or facility now or previously owned, operated or leased
by the Guarantor or any of its Subsidiaries and that could result in a
Material Adverse Effect have been made available to the Lenders.
8.14 Capitalization. On the date hereof, the authorized capital
stock of the Company consists of an aggregate of 890,000 shares of $1.00 par
value common stock. All of the issued and outstanding shares of the Company on
such date and at such time will be duly and validly issued, fully paid and
nonassessable. As of such date and time, all of such shares will be owned
beneficially and of record by the Guarantor and (x) there will be no outstanding
Equity Rights with respect to the Company and (y) there will be no outstanding
obligations of the Company or the Guarantor or any of their Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of capital stock of the
Company nor will there be any outstanding obligations of the Company or the
Guarantor or any of their Subsidiaries to make payments to any Person, such as
"phantom stock" payments, where the amount thereof is calculated with reference
to the fair market value or equity value of the Company or any of its
Subsidiaries.
8.15 Subsidiaries, Etc.
(a) Part A of Schedule III hereto sets forth all Subsidiaries of the
Guarantor as of the date hereof.
(b) Set forth in Part B of Schedule III hereto is a complete and
correct list of all Investments held by the Guarantor or any of its Subsidiaries
on the date hereof and, for each such Investment, (x) the identity of the Person
or Persons holding such Investment and (y) the nature of such Investment. Except
as disclosed in Schedule III hereto, each of the Guarantor or such Subsidiary,
as the case may be, owns on the date hereof, free and clear of all Liens (other
than Liens permitted under Section 9.06 hereof) all such Investments.
8.16 Title to Assets. Each of the Guarantor and its Subsidiaries
owns and has on the date hereof good and marketable title (subject only to Liens
permitted by Section 9.06 hereof) to the Properties shown to be owned in the
most recent financial statements referred to in Section 8.02 hereof (other than
Properties that are disposed of in the ordinary course of business or otherwise
permitted to be disposed of pursuant to Section 9.05 hereof). Each of the
Guarantor and its Subsidiaries owns and has on the date hereof good and
marketable title to, or valid leasehold interests in, and enjoys peaceful and
undisturbed possession of, all Properties (subject only to Liens permitted by
Section 9.06 hereof) that are necessary for the operation and conduct of its
businesses.
8.17 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Credit Documents or included herein or therein or delivered pursuant hereto or
thereto (including, without limitation, the Information Memorandum), when taken
as a whole, do not contain any untrue statement of material fact or omit to
state any material fact necessary to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading. All
written information furnished after the date
Credit Agreement
<PAGE>
-62-
hereof by the Guarantor or any of its Subsidiaries to the Administrative Agent
and the Lenders in connection with this Agreement and the other Credit Documents
and the transactions contemplated hereby and thereby will be true, complete and
accurate in every material respect, or (in the case of projections) based on
estimates deemed in good faith to be reasonable, on the date as of which such
information is stated or certified. There is no fact known to any Obligor that
could reasonably be expected to have a Material Adverse Effect that has not been
disclosed herein, in the other Credit Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.18 Real Property. Set forth on Schedule IV hereto is a list, as of
the date hereof, of all of the real Property interests held by the Guarantor and
its Subsidiaries, indicating in each case whether the respective Property is
owned or leased, the identity of the owner or lessee, the location of the
respective Property and whether such Property is subject to a Mortgage.
8.19 Security Documents. The Security Documents create, as security
for the obligations purported to be secured thereby, a valid and enforceable
perfected interest in and Lien on all of the Properties covered thereby in favor
of the Administrative Agent, superior to and prior to the right of all third
Persons and subject to no other Liens (other than Liens permitted under Section
9.06 hereof).
Section 9. Covenants of the Obligors. Each Obligor covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Obligors hereunder:
9.01 Financial Statements, Etc. The Guarantor and the Company shall
deliver to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of the first three quarterly fiscal periods of each fiscal year of the
Guarantor, consolidated statements of income, retained earnings and cash
flows of the Guarantor and its Subsidiaries (including TOPCO) for such
period and for the period from the beginning of the respective fiscal year
to the end of such period, and the related consolidated balance sheet as
at the end of such period, setting forth in each case in comparative form
the corresponding consolidated figures for the corresponding periods in
the preceding fiscal year, accompanied by a certificate of a Responsible
Officer of the Guarantor, which certificate shall state that said
consolidated financial statements present fairly, in all material
respects, the consolidated financial position and results of operations of
the Guarantor and its Subsidiaries (including TOPCO), in each case in
accordance with generally accepted accounting principles, consistently
applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments and excluding any footnotes thereto);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Guarantor, audited consolidated statements
of income, retained earnings
Credit Agreement
<PAGE>
-63-
and cash flows of the Guarantor and its Subsidiaries (including TOPCO),
for such fiscal year and the related audited consolidated balance sheet as
at the end of such fiscal year, setting forth in each case in comparative
form (i) the corresponding consolidated figures for the preceding fiscal
year and (ii) the corresponding consolidated projected figures contained
in the business plan furnished under Section 9.01(f) hereof in respect of
such fiscal year (or in the quarterly business plan of the Guarantor
heretofore delivered to the Administrative Agent), and accompanied by an
opinion thereon of independent certified public accountants of recognized
national standing (the "Accountants"), which opinion shall state that said
consolidated financial statements present fairly, in all material
respects, the consolidated financial position and results of operations of
the Guarantor and its Subsidiaries (including TOPCO) as at the end of, and
for, such fiscal year in accordance with generally accepted accounting
principles, and a certificate of such accountants stating that, in making
the examination necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Default under any of Sections 9.10
through 9.13 hereof;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports and other material
reports, if any, which either the Guarantor or the Company shall have
filed with the Commission (or any governmental agency substituted
therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of either
the Guarantor or the Company generally, copies of all financial
statements, reports and proxy statements so mailed;
(e) as soon as possible, and in any event within 21 days after
either the Guarantor or the Company knows or has reason to believe that
any of the events or conditions specified below with respect to any Plan
or Multiemployer Plan has occurred or exists, a statement signed by a
Responsible Officer of the Company setting forth details respecting such
event or condition and the action, if any, that the Guarantor or the
Company, as the case may be, or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed
with or given to PBGC by such Obligor or an ERISA Affiliate with respect
to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302
of ERISA, including, without limitation, the failure to make on or
before its due date a required installment under Section 412(m) of
the Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section
412(d) of the Code); and any request for a waiver under Section
412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by either the
Guarantor or the Company or
Credit Agreement
<PAGE>
-64-
an ERISA Affiliate to terminate any Plan if the assets of such Plan
are insufficient to provide in full for all of the benefit
liabilities under such Plan as contemplated by Section 4041(b) of
ERISA;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by either the
Guarantor or the Company any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by either Obligor or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt by either the Guarantor or the Company or
any ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against either the Guarantor or the Company or
any ERISA Affiliate to enforce Section 515 of ERISA, which
proceeding is not dismissed within 30 days;
(vi) the adoption of an amendment to any Plan that, pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if either the Guarantor or the Company or an ERISA
Affiliate fails to timely provide security to the Plan in accordance
with the provisions of said Sections; and
(vii) the existence of any event or circumstance which may
reasonably be expected to constitute grounds for either the
Guarantor or the Company or any ERISA Affiliate to incur liability
under Section 4062, 4063, 4064 or 4069 of ERISA;
(f) no later than 15 days prior to the end of the fiscal year of the
Company, an annual business plan for the Company and its Subsidiaries
covering the next succeeding year, in form and substance reasonably
satisfactory to the Administrative Agent (and, if reasonably requested by
the Majority Lenders prior to such date, an annual business plan for the
succeeding five-year period);
(g) at such times as the Administrative Agent or the Majority
Revolving Credit Lenders may reasonably request, a report of the
Accountants as at the end of the most recent fiscal year of the Company
which shall indicate that, based upon a review by the Accountants of the
Receivables other than those transferred in connection with the
Receivables Financing (including, without limitation, verification with
respect to the amount, aging, identity and credit of the respective
account debtors and the billing practices of the Company and the
Subsidiary Guarantors) and Inventory (including,
Credit Agreement
<PAGE>
-65-
without limitation, verification as to the value, location and respective
types), the value of such Receivables and Inventory;
(h) promptly after becoming aware thereof, written notice of (i) the
assertion of any Environmental Claim by any Person against, or with
respect to the activities of, the Guarantor or any of its Subsidiaries and
notice of any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than
any Environmental Claims or alleged violations which, if adversely
determined, would not have a Material Adverse Effect, (ii) any
Environmental Claim, inquiry, proceeding, investigation, or other action,
including a notice from any governmental authority of potential
environmental liability, or any Federal, state or local environmental
agency or board, that involves any collateral security for the Loans or
the Lenders' rights with respect to any such collateral security, and
(iii) any Release of a non-de minimus quantity of Hazardous Materials at
any site or facility of the Guarantor or any Subsidiary;
(i) promptly after either the Guarantor or the Company knows or has
reason to believe that any Default has occurred, a notice of such Default
describing the same in reasonable detail and, together with such notice or
as soon thereafter as reasonably possible, a description of any action
that the Guarantor or the Company, as the case may be, has taken or
proposes to take with respect thereto; and
(j) from time to time such other information regarding the financial
condition, operations, business or prospects of the Guarantor or any of
its Subsidiaries (including, without limitation, any Plan or Multiemployer
Plan and any reports or other information required to be filed under
ERISA) as any Lender or the Administrative Agent may reasonably request.
The Guarantor will furnish to each Lender, at the time it furnishes
each set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a Responsible Officer of the Company (i) to the effect that, to
the best of such Responsible Officer's knowledge, no Default has occurred and is
continuing (or, if any Default has occurred and is continuing, describing the
same in reasonable detail and describing any action that either the Guarantor or
the Company has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Guarantor and the Company are in compliance with Sections 9.09 through 9.13
(inclusive) as of the end of the respective quarterly fiscal period or fiscal
year.
9.02 Litigation. Upon becoming aware thereof, the Company (for
itself and on behalf of the Guarantor and its Subsidiaries) will promptly give
to each Lender notice of all legal or arbitral proceedings, and of all
proceedings by or before any governmental or regulatory authority or agency, and
any material development in respect of such legal or other proceedings,
affecting the Guarantor or any of its Subsidiaries, except proceedings that, if
adversely determined, could not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
Credit Agreement
<PAGE>
-66-
9.03 Existence, Etc. The Guarantor will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 9.03 shall prohibit any transaction expressly
permitted under Section 9.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect;
(c) pay and discharge all material taxes, assessments and
governmental charges or levies imposed on it or on its income or profits
or on any of its Property prior to the date on which penalties attach
thereto, except for (i) any such tax, assessment, charge or levy the
payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained and
(ii) those taxes, assessments, charges or levies which by reason of the
amount involved or the remedies available to the applicable taxing
authority could not reasonably be expected to have a Material Adverse
Effect;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP consistently applied; and
(f) permit representatives of any Lender or the Administrative Agent
upon reasonable prior notice and, during normal business hours, to
examine, copy and make extracts from its books and records, to inspect any
of its Properties, and to discuss its business and affairs with its
officers and Accountants, all to the extent reasonably requested by such
Lender or the Administrative Agent (as the case may be); provided that the
Administrative Agent or such Lender shall (i) provide reasonable notice to
the Guarantor and the Company prior to having any such discussions with
such Accountants and (ii) provide representatives of the Guarantor and/or
the Company the opportunity to participate in such discussions.
9.04 Insurance. The Guarantor will, and will cause each of its
Subsidiaries to, keep insured by financially sound and reputable insurers all
Property of a character usually insured by Persons engaged in the same or
similar business similarly situated against loss, damage and liability of the
kinds and in the amounts customarily insured against by such Persons.
Such insurance shall be written by financially responsible companies
selected by the Company, duly licensed to do business in the states in which the
relevant facilities are located and having an A. M. Best rating of "A-" or
better and being in a financial size category of VIII or larger, or by other
companies reasonably acceptable to the Administrative Agent. The
Credit Agreement
<PAGE>
-67-
policies for any casualty insurance required hereunder shall either name or
contain an endorsement naming the Administrative Agent as first mortgagee and
loss payee under a first mortgage clause or endorsement without contribution
substantially equivalent to the New York standard first mortgage clause of
endorsement. Each policy referred to in this Section 9.04 shall provide that it
will not be canceled or reduced, or allowed to lapse without renewal, except
after not less than 30 days' notice to the Administrative Agent and shall also
provide that the interests of the Administrative Agent and the Lenders shall not
be invalidated by any act or negligence of the Credit Parties or any Person
having an interest in any Property covered by a Mortgage nor by occupancy or use
of any such Property for purposes more hazardous than permitted by such policy
nor by any foreclosure or other proceedings relating to such Property and shall
otherwise be in form and substance satisfactory to each Lender. The Company will
advise the Administrative Agent promptly of any policy cancellation, reduction
or amendment.
The Company will deliver to the Administrative Agent prior to the
expiration of any policy of insurance required to be maintained by the Company
hereunder, certificates of insurance evidencing the renewal or replacement of
all such policies, subject only to the payment of premiums as they become due.
The Company will not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section 9.04 unless
the Administrative Agent, on behalf of the Lenders, is named as first mortgagee
and loss payee as provided herein. The Company will immediately notify the
Administrative Agent whenever any such separate insurance is obtained and shall
deliver to the Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Company under the foregoing
provisions of this Section 9.04, in the event the Company shall fail to maintain
in full force and effect insurance as required by the foregoing provisions of
this Section 9.04, then the Administrative Agent may, but shall have no
obligation so to do, procure insurance covering the interests of the Lenders and
the Administrative Agent in such amounts and against such risks as the
Administrative Agent (or the Majority Lenders) shall deem appropriate, and the
Company shall reimburse the Administrative Agent in respect of any premiums paid
by the Administrative Agent in respect thereof.
9.05 Prohibition of Fundamental Changes.
(a) The Guarantor will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(b) The Guarantor will not, nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of, or
be a party to any acquisition of, any Person except for (i) purchases of
inventory and other Property to be sold or used in the ordinary course of
business, (ii) Investments permitted under Section 9.08 hereof, (iii) Capital
Expenditures and (iv) Permitted Acquisitions, provided that, in the case of
clause (iv), after giving effect to any such Permitted Acquisition (including
after giving Pro Forma Effect thereto), no Default shall have occurred and be
continuing.
Credit Agreement
<PAGE>
-68-
(c) The Guarantor will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or Property,
whether now owned or hereafter acquired, including, without limitation,
receivables and leasehold interests, but excluding (i) obsolete or worn-out
Property, tools or equipment no longer used or useful in its business, (ii) any
inventory or other Property sold or disposed of in the ordinary course of
business and on ordinary business terms, (iii) any Part A Property sold or
disposed of for fair value, (iv) any Part B Property sold or disposed of within
one year prior to or after the Disposition of any Part A Property located in the
same geographical area if the proceeds thereof are applied as provided in
Section 2.10(d) hereof and (v) other Properties sold for fair value, provided
that at least 75% of the proceeds of each such sale shall be received in cash
and the aggregate Net Available Proceeds received from the sale of such
Properties and all other Properties sold pursuant to this clause (v) shall not
exceed $15,000,000.
(d) Notwithstanding the foregoing provisions of this Section 9.05:
(i) any Subsidiary of the Company may be merged or
consolidated with or into: (x) the Company if the Company shall be the
continuing or surviving corporation or (y) any other such Subsidiary;
provided that if any such transaction shall be between a Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the
continuing or surviving corporation;
(ii) any Subsidiary of the Company may sell, lease, transfer
or otherwise dispose of any or all of its Property (upon voluntary
liquidation or dissolution or otherwise) to the Company or a Wholly-Owned
Subsidiary of the Company;
(iii) the Company and its Subsidiaries may sell or discount,
in each case without recourse and in the ordinary course of business,
receivables more than 90 days overdue and arising in the ordinary course
of business, but only in connection with the compromise or collection
thereof consistent with customary industry practice (and not as part of
any bulk sale or financing of receivables);
(iv) the Company and its Subsidiaries may transfer condemned
Property to the respective governmental authority or agency that has
condemned the same (whether by deed in lieu of condemnation or otherwise),
and may transfer Properties that have been subject to a casualty to the
respective insurer (or its designee) of such Property as part of an
insurance settlement;
(v) the Company and its Subsidiaries may license or sublicense
software, trademarks, and other intellectual property in the ordinary
course of business which do not materially interfere with the business of
the Company or any Subsidiary;
(vi) the Company and its Subsidiaries may enter into
consignment arrangements (as consignor or consignee) or similar
arrangements for the sale of goods in the ordinary course of business and
consistent with the past practices of the Company and its Subsidiaries;
Credit Agreement
<PAGE>
-69-
(vii) the Company and its Subsidiaries may transfer
Receivables in connection with the Receivables Financing; and
(viii) the Company and its Subsidiaries may (A) enter into
licensing or sublicencing arrangements with respect to their intellectual
property with TOPCO, (B) enter into leases, subleases or assignments of
leases of real property with TOPCO and (C) transfer all of the assets or
the equity rights of a company disclosed to the Administrative Agent prior
to the date hereof to TOPCO; provided that the aggregate fair market value
to the Company and its Subsidiaries of the transactions described in
subclause (C) of this clause (viii), as determined in good faith by the
Company, plus any Investments made by the Guarantor or any of its
Subsidiaries in TOPCO pursuant to Section 9.08(o) hereof shall not exceed
the amount of Investments permitted under said Section 9.08(o).
9.06 Limitation on Liens. The Guarantor will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and (i) listed in Part B
of Schedule I hereto or (ii) listed in any policy of title insurance
delivered to the Administrative Agent in respect of the real Property
subject to a Mortgage;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is not
material with respect to it or its financial condition, adequate reserves
with respect thereto are maintained on the books of the Guarantor or the
affected Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's or other like Liens arising in the ordinary course
of business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and Liens
securing judgments but only to the extent, for an amount and for a period
not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on
the use of Property, encroachments, protrusions or minor imperfections in
title thereto that, in the aggregate, are not material in amount, and that
do not in any case materially detract from the value of the Property
Credit Agreement
<PAGE>
-70-
subject thereto or materially interfere with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(h) Liens on Property of any Person that becomes a Subsidiary of the
Guarantor after the Effective Date; provided that such Liens are in
existence at the time such corporation becomes a Subsidiary of the
Guarantor and were not created in anticipation thereof;
(i) Liens upon Property acquired after the date hereof (by purchase,
construction or otherwise) by the Company or any of its Subsidiaries, each
of which Liens either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof or (B) was created
within 120 days of the acquisition or completion of construction of such
Property solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that (i) no such Lien shall
extend to or cover any Property of the Company or such Subsidiary other
than the Property so acquired and improvements thereon and (ii) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed 100% of the fair market value (as determined in good faith by a
Responsible Officer of the Company) of such Property at the time it was
acquired (by purchase, construction or otherwise);
(j) Liens in respect of Capital Lease Obligations to the extent
permitted by Section 9.07 hereof and Liens arising under any equipment,
furniture or fixtures leases or Property consignments to the Guarantor or
any Subsidiary for which the filing of a precautionary financing statement
is permitted under Section 5.02 of the Security Agreement or Section 6.02
of the Subsidiary Guarantee and Security Agreement;
(k) licenses, leases or subleases granted to others in the ordinary
course of business not materially interfering with the conduct of the
business of the Company and its Subsidiaries taken as a whole;
(l) statutory and contractual landlords' liens under leases to which
the Company or any of its Subsidiaries is a party;
(m) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
(n) Liens in favor of a banking institution arising as a matter of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(o) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs' duties in connection with
the importation of goods;
(p) Liens (if any) created by the Receivables Company in connection
with the Receivables Financing; and
Credit Agreement
<PAGE>
-71-
(q) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be spread
to cover any additional Indebtedness or Property (other than a
substitution of like Property).
9.07 Indebtedness. The Guarantor will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder and under the other Credit
Documents;
(b) the Guarantor Note and other Indebtedness (including the
Existing Senior Subordinated Notes) outstanding on the date hereof and
listed in Schedule I hereto and any refinancing, refunding, renewal or
extension thereof, provided the principal amount thereof is not materially
increased after the date hereof and no Event of Default exists at the time
of such refinancing, refunding, renewal or extension or no Default would
result therefrom;
(c) Indebtedness of (i) any Credit Party to any other Credit Party,
(ii) any Subsidiary that is not a Credit Party to any other Subsidiary
that is not a Credit Party, (iii) any Subsidiary that is not a Credit
Party to any Credit Party and (iv) any Credit Party to any Subsidiary that
is not a Credit Party (in the case of this clause (iv) only) in an
aggregate unpaid principal amount of not exceeding $25,000,000 at any one
time outstanding;
(d) Indebtedness of the Company or any Subsidiary as a guarantor of
the lessee under any lease pursuant to which the Company or any Subsidiary
of the Company is a lessee so long as such lease is otherwise permitted
hereunder;
(e) Indebtedness incurred on or after the Revolving Credit
Commitment Termination Date and after the payment in full of all Revolving
Credit Loans and all Letter of Credit Liabilities for working capital or
other general corporate purposes of the Company and/or its Subsidiaries
not exceeding $250,000,000 in the aggregate and on terms satisfactory to
the Majority Lenders in their reasonable discretion;
(f) Indebtedness of the Company and its Subsidiaries incurred after
the Effective Date (including, without limitation, Capital Lease
Obligations and other Indebtedness secured by Liens permitted under
Sections 9.06(i) or 9.06(j) hereof) up to but not exceeding, in the case
of the Company, $20,000,000 and, in the case of any Subsidiary of the
Company, $750,000, at any one time outstanding;
(g) any senior subordinated debentures or notes (which may be
guaranteed by the Guarantor and the Subsidiary Guarantors) issued by the
Company after the Effective Date (i) having terms (other than as to
pricing and subordination) not materially more restrictive with respect to
the Guarantor and its Subsidiaries than those terms contained in the 1998
Indenture, (ii) having subordination terms not materially less favorable
to the Lenders than those contained in the 1998 Indenture, (iii) in an
aggregate principal amount not exceeding $100,000,000 at any one time
outstanding, (iv) maturing not earlier than
Credit Agreement
<PAGE>
-72-
ten years from the date hereof or having an average life of not less than
nine years and (v) having a cash interest rate or coupon of not more than
10% per annum; and
(h) Indebtedness of the Receivables Company incurred in connection
with the Receivables Financing not exceeding $163,000,000 in amount at any
one time outstanding.
9.08 Investments. The Guarantor will not, nor will it permit any of
its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) the Guarantor Note and other Investments (other than Permitted
Investments) outstanding on the date hereof and identified in Schedule III
hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Guarantor in the Company and Investments by
the Company in its Wholly-Owned Subsidiaries (other than the Receivables
Company); provided that such Investments shall not exceed $10,000,000 in
the aggregate for any such Wholly-Owned Subsidiaries that are not
Subsidiary Guarantors;
(e) deposits permitted by Section 9.06(e) or (f) hereof;
(f) Investments received in settlement of defaulted Receivables or
in connection with the bankruptcy or reorganization of suppliers and
customers and in connection with the settlement of other disputes with
customers and suppliers arising in the ordinary course of business;
(g) intercompany loans to the extent permitted by Section 9.07(c)
hereof;
(h) Permitted Acquisitions;
(i) Investments by the Company and its Subsidiaries in connection
with the Receivables Financing;
(j) promissory notes and other non-cash consideration received in
connection with any transfer of assets permitted under Section 9.05(c)
hereof;
(k) customer advances not to exceed $250,000 in the aggregate at any
one time outstanding;
(l) extensions of credit permitted under Section 9.07(c) hereof;
(m) extensions of trade credit in the ordinary course of business;
(n) Investments in Hedging Agreements entered into in the ordinary
course of business for non-speculative purposes;
Credit Agreement
<PAGE>
-73-
(o) Investments in TOPCO not exceeding $60,000,000 in the aggregate
at any one time outstanding; and
(p) additional Investments (including Investments in TOPCO in
addition to those permitted under Section 9.08(o) hereof) up to but not
exceeding $10,000,000 in the aggregate at any one time outstanding.
9.09 Restricted Payments.
(a) The Company will not, nor will it permit any of its Subsidiaries
to, declare or make any Restricted Payment at any time; provided, however, that
(1) any Subsidiary of the Company may make any Restricted Payment to the Company
or any Wholly-Owned Subsidiary of the Company, (2) the Company may declare or
make any dividend of the capital stock of TOPCO to the Guarantor and (3) the
Company may declare and make any Restricted Payment in cash in respect of its
common stock in order to permit the Guarantor to (i) pay any income, franchise
or like taxes to the extent permitted by the Tax Sharing Agreement, (ii) pay its
operating expenses incurred in the ordinary course of business and other
corporate overhead costs and expenses (including, without limitation, legal,
accounting, reporting, listing and similar expenses) in an aggregate amount not
exceeding $750,000 in any fiscal year, (iii) acquire shares of its common stock
in an aggregate amount not exceeding $50,000,000, (iv) repurchase its common
stock and warrants and/or to redeem or repurchase vested management options for
an aggregate purchase price not exceeding $1,000,000 in any 12-month period
(exclusive of shares of stock retained by the Credit Parties upon the exercise
of options in order to satisfy the tax obligations of the exercising parties)
and (v) pay cash dividends on its common stock, subject, in the case of clause
(3)(iii), (iv) and (v) above, to the satisfaction of the following conditions on
the date of such Restricted Payment:
(1) no Default shall have occurred and be continuing;
(2) the Fixed Charges Ratio as at the last day of the fiscal
quarter of the Company most recently ended prior to the date of such
Restricted Payment (and after giving pro forma effect thereto) shall
not be less than 1.2 to 1; and
(3) the average, for the immediately preceding 90 days, of the
excess of (i) the aggregate Revolving Credit Commitments over (ii)
the sum of the outstanding principal amount of Revolving Credit
Loans, and the Swingline Loans and the aggregate amount of Letter of
Credit Liabilities shall be an amount at least equal to $50,000,000.
(b) The Guarantor will not declare or make any Restricted Payment,
except for Restricted Payments in respect of (i) the capital stock of TOPCO
permitted under clause (2) of Section 9.09(a) hereof and (ii) the Guarantor's
stock (and/or warrants or options related thereto) permitted, and subject to the
limitations, under clause (3)(iii), (iv) and (v) of Section 9.09(a) hereof.
9.10 Net Worth. The Guarantor will not permit Net Worth to be less
than the sum of (a) $334,000,000 plus (b) 50% of the sum of Net Income (if
positive) for each fiscal
Credit Agreement
<PAGE>
-74-
quarter of the Guarantor commencing with the fiscal quarter ending June 30, 2000
plus (c) 100% of the amount by which Net Worth shall have been increased as a
result of any Equity Issuance.
9.11 Leverage Ratio. The Guarantor will not permit the Leverage
Ratio to exceed the following respective amounts at any time during the
following respective periods:
Period Ratio
------ -----
From the date hereof
through December 30, 2000 3.75 to 1
From December 31, 2000
through December 30, 2001 3.50 to 1
From December 31, 2001
through December 30, 2002 3.25 to 1
From December 31, 2002 3.00 to 1
and thereafter
9.12 Fixed Charges Ratio. The Guarantor will not permit the Fixed
Charges Ratio to be less than 1.20 to 1 at any time:
9.13 Interest Coverage Ratio. The Guarantor will not permit the
Interest Coverage Ratio to be less than the following respective amounts at any
time during the following respective periods:
Period Ratio
------ -----
From the date hereof
through December 30, 2000 2.75 to 1
From December 31, 2000
through December 30, 2001 3.0 to 1
From December 31, 2001
and thereafter 3.25 to 1
9.14 Subordinated Indebtedness. The Guarantor will not, nor will it
permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Subordinated Indebtedness, except for
regularly scheduled payments or prepayments of principal and interest in respect
thereof required pursuant to the instruments evidencing such Subordinated
Indebtedness.
9.15 Lines of Business. The Guarantor will not, nor will it permit
any of its Subsidiaries (including, without limitation, the Company) to, engage
to any substantial extent in
Credit Agreement
<PAGE>
-75-
any line or lines of business activity other than (a) the business of the
wholesale distribution and selling of office products, computers, computer
products, janitorial supplies and similar products and the provision of
fulfillment services and any lines of business reasonably related thereto and
(b) the sale of Receivables by the Company or any of its Subsidiaries pursuant
to the Receivables Financing.
9.16 Transactions with Affiliates. Except as expressly permitted by
this Agreement, the Guarantor will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of an Affiliate);
except that (i) any Affiliate who is an individual may serve as a director,
officer, employee or consultant of the Guarantor or any of its Subsidiaries and
receive reasonable compensation for his or her services in such capacity, (ii)
the Company may enter to shared services arrangements with TOPCO, (iii) the
Company and its Subsidiaries may enter into any such transaction (other than
extensions of credit by the Company or any of its Subsidiaries to an Affiliate)
in the ordinary course of business and on terms not less favorable to the
Company or such Subsidiary than could otherwise be obtained on an arm's length
basis from unrelated third parties and (iv) the Company and its Subsidiaries may
perform their respective obligations under the Receivables Financing Documents.
9.17 Use of Proceeds. The Company will use the proceeds of the
Revolving Credit Loans made on or after the Effective Date solely to finance the
working capital needs and general corporate purposes of the Company and its
Subsidiaries (including Permitted Acquisitions). The Company will use the
proceeds of the Tranche A-1 Term Loans solely (i) to prepay the Existing
Revolving Credit Loans that are continued hereunder (including accrued interest
thereon) and to pay the amounts required to be paid pursuant to Section 7.01(k)
hereof and (ii) for general corporate purposes of the Company and its
Subsidiaries (including Permitted Acquisitions). The use of the proceeds of the
Loans by the Company shall be in compliance with all applicable legal and
regulatory requirements, including, without limitation, Regulations U and X, the
Securities Act of 1933, as amended, and the Exchange Act and the regulations
thereunder; provided that neither the Administrative Agent nor any Lender shall
have any responsibility as to the use of any of such proceeds.
9.18 Modifications of Certain Documents. (a) Without the approval of
the Majority Lenders, no Obligor will consent to any modification, supplement or
waiver of any of the provisions of the Senior Subordinated Debt Documents
(except any supplemental indenture contemplated by Section 1017(a) or (c) of the
1998 Indentures or any similar provision in any other Senior Subordinated Notes
Indenture).
(b) The Guarantor will not take any action to modify or supplement
the Articles of Incorporation of the Company, other than modifications that do
not adversely affect the interests of the Lenders, without the prior approval of
the Majority Lenders.
9.19 Ownership of the Company. The Guarantor will at all times hold
not less than 100% of the issued and outstanding capital stock of the Company.
Credit Agreement
<PAGE>
-76-
9.20 Taxes. The Guarantor and its Subsidiaries will file
consolidated Federal income tax returns.
9.21 Subsidiary Guarantors; Additional Mortgaged Property.
(a) In the event that the Guarantor shall, after the Effective Date,
directly or indirectly hold or acquire any Domestic Subsidiary, the Guarantor
will notify the Lenders (through the Administrative Agent) and will, and will
cause each of its other Subsidiaries to, cause such Domestic Subsidiary (i) to
execute and deliver a Guarantee Assumption Agreement in substantially the form
of Exhibit H hereto, mutatis mutandis, (ii) at the request of the Majority
Lenders, to enter into a Mortgage covering all of the interests in material real
Property owned by such Domestic Subsidiary and (iii) to deliver such proof of
corporate action, incumbency of officers, opinions of counsel and other
documents as are consistent with those delivered by the Company pursuant to
Section 7.01 hereof or as the Administrative Agent shall have reasonably
requested.
(b) Subject to Section 9.24 hereof, if the Company or any of its
Domestic Subsidiaries acquires or leases any material real Property after the
Effective Date (other than any real Property encumbered by Liens permitted by
Section 9.06(i) hereof), the Company or such Subsidiary will promptly execute a
Mortgage covering the Property securing such repaid Indebtedness or such
newly-acquired Property, as the case may be, together with such surveys, title
insurance policies and endorsements, certificates of occupancy and such other
agreements, estoppels and consents (including agreements with lessors) as the
Administrative Agent may reasonably require. In addition, at the request of the
Administrative Agent, the Company shall, or shall cause such Domestic Subsidiary
to, execute a Mortgage covering any material Property that is owned or leased by
such Domestic Subsidiary on the Effective Date for which a Mortgage has not
heretofore been delivered, together with such surveys, title insurance policies
and endorsements, certificates of occupancy and such other agreements, estoppels
and consents (including agreements with lessors) as the Administrative Agent may
reasonably require with respect to such Property and which are available upon
the exercise by the Company and such Subsidiary of commercially reasonable
efforts.
(c) The Company will (i) not later than 90 days after the date
hereof, execute and deliver to the Administrative Agent an amendment and
confirmation or other appropriate modification to each Mortgage heretofore
delivered by the Company or any of its Subsidiaries (as reasonably determined by
the Administrative Agent), or at the reasonable request of the Administrative
Agent, a new Mortgage with respect to the Property covered by such existing
Mortgage in form and substance satisfactory to the Administrative Agent and (ii)
not later than 90 days after the date hereof, cause the applicable title company
to deliver to the Administrative Agent endorsements of the mortgagee policies of
title insurance delivered by such title company under the Existing Credit
Agreement (or, if such endorsements are not available, new mortgagee policies of
title in sequence) with respect to Properties covered by the Mortgages (other
than any such Properties located in the State of Texas and the leasehold
Property of the Company located in the State of Florida), each such amendment or
modification and endorsement to be in form and substance reasonably satisfactory
to the Administrative Agent.
Credit Agreement
<PAGE>
-77-
9.22 Termination of ERISA Plans. The Company will not and will not
permit any Subsidiary to withdraw from any Multiemployer Plan or permit any
employee benefit plan maintained by it to be terminated if such withdrawal or
termination could result in withdrawal liability (as described in Part 1 of
Subtitle E of Title IV of ERISA) or the imposition of a Lien on any Property of
the Company or any Subsidiary pursuant to Section 4068 of ERISA.
9.23 Limitations on Restrictions. The Guarantor will not and will
not permit any of its Subsidiaries to enter into any agreement or arrangement
that would prohibit, prevent or otherwise limit or impede the Guarantor or such
Subsidiary from encumbering any of its respective assets for the benefit of the
Lenders (other than any such assets subject to a Lien permitted by Section
9.06(i), (j) or (p) hereof).
9.24 Release of Security Interests. If at any time the Guarantor or
the Company shall receive an investment grade rating from both Standard & Poor's
Ratings Services and Moody's Investors Service, Inc. in respect of the
Guarantor's or the Company's long-term unsecured debt, the Administrative Agent
shall, upon the request of the Company, release the Liens on all the Property
covered by the Security Documents.
Section 10. Events of Default. If one or more of the following
events (herein called "Events of Default") shall occur and be continuing:
(a) Any Obligor shall (i) default in the payment when due (whether
at stated maturity or upon mandatory or optional prepayment) of any
principal of any Loan or any Reimbursement Obligation or (ii) default in
the payment when due of any interest on any Loan or any Reimbursement
Obligation or any fee or any other amount payable by it hereunder or under
any other Credit Document and such default shall continue unremedied for
three or more Business Days; or
(b) Any Obligor or any of their respective Subsidiaries (the
Obligors and such Subsidiaries herein collectively called the "Relevant
Parties") shall default in the payment when due of any principal of or
interest on any of its Indebtedness aggregating $10,000,000 or more, or in
the payment when due of any amount under any Hedging Agreement for a
notional principal amount exceeding $10,000,000; or any event specified in
any note, agreement, indenture or other document evidencing or relating to
any such Indebtedness or any event specified in any Hedging Agreement
shall occur if the effect of such event is to cause, or (with the giving
of any notice or the lapse of time or both) to permit the holder or
holders of any such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, Indebtedness to become due, or to be prepaid
in full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset to
a level so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof or, in the case of a
Hedging Agreement, to permit the payments owing under such Hedging
Agreement to be liquidated; or
(c) Any representation, warranty or certification made or deemed
made herein or in any Credit Document (or in any modification or
supplement hereto or thereto) by any party thereto, or any certificate
furnished to any Lender or the Administrative Agent
Credit Agreement
<PAGE>
-78-
pursuant to the provisions of any Credit Document, shall prove to have
been false or misleading as of the time made or furnished in any material
respect; or
(d) Any Obligor (as applicable) shall default in the performance of
any of its obligations under any of Sections 9.01(i), 9.05 through 9.14,
inclusive, 9.16 through 9.19, inclusive, and 9.23 hereof or any Credit
Party (as applicable) shall default in the performance of any of its
obligations under Section 4.02, 5.02 or 5.07 of the Security Agreement or
the equivalent provisions under the Subsidiary Guarantee and Security
Agreement, Section 4.02 or 4.07 of the Pledge Agreement or any provisions
of any Mortgage (or any Domestic Subsidiary shall default in the
performance of its obligations under the equivalent provisions in any
Guarantee and Security Agreement delivered pursuant to Section 9.21
hereof); or any Credit Party shall default in the performance of any of
its other obligations in this Agreement or any other Credit Document and
such default shall continue unremedied for a period of ten or more days
after notice thereof to the Company by the Administrative Agent or any
Lender (through the Administrative Agent); or
(e) Any Relevant Party shall admit in writing its inability to, or
be generally unable to, pay its debts as such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial part
of its Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code, (iv)
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts, (v)
fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code (or any other applicable bankruptcy, insolvency or similar
law) or (vi) take any corporate action for the purpose of effecting any of
the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the affected Relevant Party, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its
debts, (ii) the appointment of a receiver, custodian, trustee, examiner,
liquidator or the like of such Relevant Party or of all or any substantial
part of its Property or (iii) similar relief in respect of such Relevant
Party under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 or more days; or an order for relief
against any Relevant Party shall be entered in an involuntary case under
the Bankruptcy Code (or any other applicable bankruptcy, insolvency or
similar law); or
(h) A final judgment or judgments for the payment of money in excess
of $5,000,000 in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has not denied liability, or
indicated its intention to deny, in respect of
Credit Agreement
<PAGE>
-79-
such judgment) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against any Relevant Party
and the same shall not be discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be procured,
within 30 days from the date of entry thereof and such Relevant Party
shall not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or in the
reasonable opinion of the Majority Lenders shall be reasonably likely to
incur a liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the Majority
Lenders, could (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect; or
(j) A reasonable basis shall exist for the assertion against the
Company or any of its Subsidiaries, or any predecessor in interest of the
Company or any of its Subsidiaries or Affiliates, of (or there shall have
been asserted against the Company or any of its Subsidiaries) an
Environmental Claim that, in the judgment of the Majority Lenders is
reasonably likely to be determined adversely to the Company or any of its
Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by the Company or any of its Subsidiaries but
after deducting any portion thereof that is reasonably expected to be paid
by other creditworthy Persons jointly and severally liable therefor); or
(k) Any Change of Control shall have occurred; or
(l) Except for expiration in accordance with its terms or a
voluntary release by the Administrative Agent on behalf of the
Administrative Agent and the Lenders, including without limitation any
release of Liens permitted under Section 9.24 or 11.09 hereof, the Liens
created by the Security Documents shall at any time not constitute a valid
and perfected Lien on the collateral intended to be covered thereby (to
the extent perfection by filing, registration, recordation or possession
is required herein or therein) in favor of the Administrative Agent, free
and clear of all other Liens (other than Liens permitted under Section
9.06 hereof or under the respective Security Documents), or, except for
expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and
effect, or the enforceability thereof shall be contested by either Obligor
or any Subsidiary Guarantor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor, the
Administrative Agent shall, at the direction of the Majority Lenders (or, with
respect to Swingline Loans, upon request of the Swingline Lender), by notice to
the Obligors, terminate the Commitments and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans (including the Swingline
Loans), the Reimbursement Obligations and all other amounts payable by the
Credit Agreement
<PAGE>
-80-
Obligors hereunder (including, without limitation, any amounts payable under
Section 5.05 or 5.06 hereof) to be forthwith due and payable (provided that if
so requested by the Majority Revolving Credit Lenders, the Administrative Agent
shall terminate the Revolving Credit Commitments), whereupon such amounts shall
be immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 10 with respect to any Obligor, the
Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans, the Swingline Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder (including, without limitation, any amounts payable under Section 5.05
or 5.06 hereof) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Company hereunder to be due and payable), the
Company agrees that it shall, if requested by the Administrative Agent or the
Majority Revolving Credit Lenders through the Administrative Agent (and, in the
case of any Event of Default referred to in clause (f) or (g) of this Section 10
with respect to either Obligor, forthwith, without any demand or the taking of
any other action by the Administrative Agent or such Lenders) provide cover for
the Letter of Credit Liabilities by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to withdrawal
only as therein provided.
Section 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Credit Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 hereof
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Credit Documents, and shall
not by reason of this Agreement or any other Credit Document be a trustee
for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or
in any other Credit Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Credit Document or any other document referred to
or provided
Credit Agreement
<PAGE>
-81-
for herein or therein or for any failure by the Company or any other
Person to perform any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Credit Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Credit Document or under any
other document or instrument referred to or provided for herein or therein
or in connection herewith or therewith, except for its own gross
negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee (or Registered Holder, as the case may be) of a Loan as
the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent, together with the consent of the Company to such assignment or transfer
(to the extent provided in Section 12.06(b) hereof).
11.02 Reliance by Agent. The Administrative Agent shall be entitled
to rely upon any certification, notice or other communication (including,
without limitation, any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Credit Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by the Majority Lenders or, if
provided herein, in accordance with the instructions given by the Majority
Revolving Credit Lenders, the Majority Term Lenders or all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
11.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Company specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders or the Majority Term
Lenders, provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the
Credit Agreement
<PAGE>
-82-
consent or upon the authorization of the Majority Lenders, the Majority
Revolving Credit Lenders, the Majority Term Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitments, its
Swingline Commitment and the Loans made by it, Chase (and any successor acting
as Administrative Agent) in its capacity as a Lender or the Swingline Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" or "Swingline Lender" shall, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase (and any such successor) and its affiliates may accept fees and
other consideration from the Obligors for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders or
the Swingline Lender.
11.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Obligors under said Section 12.03,
and including in any event any payments under any indemnity that the
Administrative Agent is required to issue to any bank referred to in Section
4.02 of the Security Agreement to which remittances in respect of Accounts, as
defined therein, are to be made) ratably in accordance with the aggregate
principal amount of the Loans and Reimbursement Obligations held by the Lenders
(or, if no Loans or Reimbursement Obligations are at the time outstanding,
ratably in accordance with their respective Commitments), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative Agent (including
by any Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other Credit Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses that the Obligors are obligated to pay under Section 12.03
hereof, and including also any payments under any indemnity that the
Administrative Agent is required to issue to any bank referred to in Section
4.02 of the Security Agreement to which remittances in respect of Accounts, as
defined therein, are to be made, but excluding, unless a Default has occurred
and is continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
11.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees
that it has, independently and without reliance on the Administrative Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Guarantor and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent or any other Lender,
Credit Agreement
<PAGE>
-83-
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under this Agreement or under any other Credit Document. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by any Credit Party of this Agreement or any of the
other Credit Documents or any other document referred to or provided for herein
or therein or to inspect the Properties or books of the Guarantor or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or under the Security Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Guarantor or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Administrative Agent or any of its affiliates.
11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under the other Credit Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Obligors, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, that shall be a bank with a combined capital and
surplus and undivided profits of at least $300,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Agent, the provisions of this
Section 11 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 the Administrative
Agent.
11.09 Consents under Other Credit Documents. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Credit Documents or release any collateral under the Security Documents or
terminate any Lien thereunder, provided that, without the prior consent of each
Lender, the Administrative Agent shall not (except as provided herein or in the
Security Documents) release all or substantially all of the collateral under the
Security Documents or
Credit Agreement
<PAGE>
-84-
otherwise terminate the Liens with respect to such collateral, except that no
consent of any Lender under this Section 11.09 shall be required, and the
Administrative Agent is hereby authorized, to release any Lien (i) covering
Property that is the subject of a disposition of Property permitted hereunder,
(ii) as contemplated by Section 9.24 hereof or (iii) with respect to any
Property transferred in connection with the Receivables Financing (which release
shall be deemed to have occurred without any further action of any Person upon
such transfer). The Administrative Agent shall take any action reasonably
requested by the Company (at the Company's sole cost and expense) to release the
Liens created under the Security Documents on any Receivables and Related Assets
transferred in connection with the Receivables Financing.
11.10 Collateral Sub-Agents. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Security Agreement, that, in the event it shall hold any Permitted Investments
referred to therein, such Permitted Investments shall be held in the name and
under the control of such Lender, and such Lender shall hold such Permitted
Investments as a collateral sub-agent for the Administrative Agent thereunder.
The Obligors by their execution and delivery of this Agreement hereby consent to
the foregoing.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
12.02 Notices. Except as otherwise expressly provided herein or in
the Security Documents, all notices, requests and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including, without limitation, by telecopy)
delivered to the Administrative Agent or the Obligors at the "Address for
Notices" specified below its name on the signature pages hereof (below the name
of the Company, in the case of the Guarantor) and for any Lender at the address
specified in its Administrative Questionnaire; or, as to any party, at such
other address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
12.03 Expenses, Etc. The Obligors agree, jointly and severally, to
pay or reimburse each of the Lenders and the Administrative Agent for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to Chase) in connection
with (i) the negotiation, preparation, execution and delivery of this Agreement
and the other Credit Documents and the extension of credit hereunder and (ii)
the negotiation or preparation of any modification, supplement or waiver of any
of the terms of this Agreement or any of the other Credit Documents (whether or
not consummated); (b) all
Credit Agreement
<PAGE>
-85-
reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel for the Administrative Agent and one legal counsel for
the Lenders) in connection with (i) any Default and any enforcement or
collection proceedings resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
12.03; (c) all transfer, stamp, documentary or other similar taxes, assessments
or charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Credit Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by any Credit Document or any other document
referred to therein; and (d) all costs, expenses and other charges in respect of
title insurance procured with respect to the Liens created pursuant to the
Mortgages.
The Obligors hereby agree, jointly and severally, to indemnify the
Administrative Agent and each Lender and their respective directors, officers,
employees, attorneys and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses incurred by any of
them (including, without limitation, any and all losses, liabilities, claims,
damages or expenses incurred by the Administrative Agent to any Lender, whether
or not the Administrative Agent or any Lender is a party thereto) arising out of
or by reason of any investigation or litigation or other proceedings (including
any threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Guarantor or
any of its Subsidiaries of the proceeds of any of the extensions of credit
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses that are determined by a court of competent jurisdiction by a final
and non-appealable judgment to have been incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified or solely by
reason of a breach of this Agreement by such Person). Without limiting the
generality of the foregoing, the Obligors will (x) indemnify the Administrative
Agent for any payments that the Administrative Agent is required to make under
any indemnity issued to any bank referred to in Section 4.02 of the Security
Agreement to which remittances in respect to Accounts, as defined therein, are
to be made and (y) indemnify the Administrative Agent and each Lender from, and
hold the Administrative Agent and each Lender harmless against, any losses,
liabilities, claims, damages or expenses described in the preceding sentence
(including any Lien filed against any Property covered by the Mortgages or any
part of the Property thereunder in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Company or any of
its Subsidiaries (or any predecessor in interest to the Company or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Company or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened Release of
any Hazardous Materials at or
Credit Agreement
<PAGE>
-86-
from any such site or facility, including any such Release or threatened Release
that shall occur during any period when the Administrative Agent or any Lender
shall be in possession of any such site or facility following the exercise by
the Administrative Agent or any Lender of any of its rights and remedies
hereunder or under any of the Security Documents.
12.04 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Guarantor, the Company and the
Majority Lenders, or by the Guarantor, the Company and the Administrative Agent
acting with the consent of the Majority Lenders, and any provision of this
Agreement may be waived by the Majority Lenders or by the Administrative Agent
acting with the consent of the Majority Lenders; provided that (a) no
modification, supplement or waiver shall, (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender directly affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
directly affected thereby, (iv) change Section 4.02 hereof without the consent
of each Lender directly affected thereby, (v) release all or substantially all
of the Guarantors from any of their guarantee obligations under Section 6 hereof
without the written consent of each Lender, (vi) change any of the provisions of
this Section or the percentage in the definition of the term "Majority Lenders"
or any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender and (vii) change Section 12.06(a) hereof without the consent of each
Lender directly affected thereby; (b) no modification, supplement or waiver
shall (i) modify in any manner any of Sections 2.01(a), 2.03, 9.01(g) and
9.01(j) hereof or (ii) modify the definition of the term "Letter of Credit
Documents", "Letter of Credit Interest", or "Letter of Credit Liability",
without the consent of the Majority Revolving Credit Lenders; (c) no waiver or
modification with respect to Section 1402 or 1502 of the 1998 Indenture or any
similar provision in any other Senior Subordinated Notes Indenture shall be
effective without the consent of the Lenders holding at least 66 2/3% of the sum
of (i) the aggregate unused Commitments, (ii) the aggregate unpaid principal
amount of the Loans (other than the Swingline Loans) and (iii) the aggregate
amount of all Letter of Credit Liabilities; (d) any modification of any of the
rights or obligations of the Administrative Agent or the Issuing Bank hereunder
(including, without limitation, any of the provisions of Section 11.08 hereof)
shall require the consent of the Administrative Agent or the Issuing Bank (as
the case may be); and (e) no modification, supplement or waiver with respect to
any provision of Section 2.01(d) or 2.02(b) hereof shall be effective without
the concurrence of the Swingline Lender and, if at the time any Swingline Loans
shall be outstanding, no modification, supplement or waiver with respect to any
provision of Section 9 or 10 hereof shall be effective without the concurrence
of the Swingline Lender.
12.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06 Assignments and Participations.
Credit Agreement
<PAGE>
-87-
(a) No Obligor may assign any of its rights or obligations hereunder
without the prior consent of all of the Lenders and the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Commitments, and,
if such Lender is a Revolving Credit Lender, its Letter of Credit Interest and
its interest acquired under Section 2.01(d) hereof in Swingline Loans (but only
with the consent of, in the case of its outstanding Commitments, the Company and
the Administrative Agent and, in the case of the Revolving Credit Commitment or
a Letter of Credit Interest, the Issuing Bank); provided that
(i) no such consent by the Company or the Administrative Agent shall
be required in the case of any assignment to another Lender or a Lender
Affiliate of such assigning Lender;
(ii) except to the extent the Company and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to
another Lender or a Lender Affiliate) shall be in an amount at least equal
to $5,000,000 (or, if less, the aggregate unpaid principal amount of the
Loans and the aggregate Commitments of such Lender);
(iii) each such assignment by a Lender of its Revolving Credit
Loans, Revolving Credit Commitment or Letter of Credit Interest shall be
made in such manner so that the same portion of its Revolving Credit
Loans, Revolving Credit Commitment and Letter of Credit Interest is
assigned to the respective assignee;
(iv) upon each such assignment, the assignor and assignee shall
deliver to the Company, the Administrative Agent and the Issuing Bank an
Assignment and Acceptance; and
(v) no consent required of the Company or the Administrative Agent
under this Section 12.06(b) shall be unreasonably withheld or delayed.
Upon execution and delivery by the assignor and the assignee to the Company, the
Administrative Agent and the Issuing Bank of such Assignment and Acceptance, and
upon consent thereto by the Company, the Administrative Agent and the Issuing
Bank to the extent required above, the assignee shall have, to the extent of
such assignment (unless otherwise consented to by the Company, the
Administrative Agent and the Issuing Bank), the obligations, rights and benefits
of a Lender hereunder holding the Commitment(s), Loans and, if applicable,
Letter of Credit Interest (or portions thereof) assigned to it and specified in
such Assignment and Acceptance (in addition to the Commitment(s), Loans and
Letter of Credit Interest, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment the
assigning Lender or such assignee, as applicable, shall pay the Administrative
Agent an assignment fee of $3,500; provided that in the case of any such
assignment to a Proposed Lender (as defined in Section 5.08 hereof), such
assignment fee shall be paid by the Company.
(c) A Lender may sell or agree to sell to one or more other Persons
a participation in all or any part of any Loans or Letter of Credit Interest
held by it, or in its Commitments, in
Credit Agreement
<PAGE>
-88-
which event each purchaser of a participation (a "Participant") shall be
entitled to the rights and benefits of the provisions of Section 9.01(j) hereof
with respect to its participation in such Loans, Letter of Credit Interest and
Commitments as if (and the Company shall be directly obligated to such
Participant under such provisions as if) such Participant were a "Lender" for
purposes of said Section, but, except as otherwise provided in Section 4.07(c)
hereof, shall not have any other rights or benefits under this Agreement or any
other Credit Document (the Participant's rights against such Lender in respect
of such participation to be those set forth in the agreements executed by such
Lender in favor of the Participant). All amounts payable by the Company to any
Lender under Section 5 hereof in respect of Loans, Letter of Credit Interest
held by it, and its Commitments, shall be determined as if such Lender had not
sold or agreed to sell any participations in such Loans, Letter of Credit
Interest and Commitments, and as if such Lender were funding each of such Loan,
Letter of Credit Interest and Commitments in the same way that it is funding the
portion of such Loan, Letter of Credit Interest and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Credit Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of such Lender's related
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans, Reimbursement Obligations or any portion
of any fee hereunder payable to the Participant, (iii) reduce the amount of any
such payment of principal, (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below the
rate at which the Participant is entitled to receive such interest or fee, (v)
alter the rights or obligations of the Company to prepay the related Loans or
(vi) consent to any modification, supplement or waiver hereof or of any of the
other Credit Documents to the extent that the same, under Section 11.09 or 12.04
hereof, requires the consent of each Lender.
(d) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 12.06, any Lender may (without
notice to the Company, the Administrative Agent or any other Lender and without
payment of any fee) pledge or assign a security interest in all or any portion
of its rights under this Agreement to secure obligations of such Lender,
including any such pledge or assignment to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such assignee
for such Lender as a party hereto.
(e) A Lender may furnish any information concerning the Obligors or
any of their respective Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Company or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
Credit Agreement
<PAGE>
-89-
(g) The Administrative Agent, acting for this purpose as an agent of
the Company, shall maintain at one of its offices in New York City a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Company, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Company
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
12.07 Survival. The obligations of the Obligors under the last
paragraph of Section 2.03 hereof and under Sections 5.01, 5.05, 5.06, 5.07 and
12.03 hereof and the obligations of the Credit Parties (as applicable) under
Section 6.03 of the Security Agreement, Section 7.03 of the Subsidiary Guarantee
and Security Agreement, and Section 4.13 of the Pledge Agreement, the
obligations of the Guarantor under Section 6.03 hereof, and the obligations of
the Lenders under Section 11.05 hereof, shall survive the repayment of the Loans
and Reimbursement Obligations and the termination of the Commitments and, in the
case of any Lender that may assign any interest in its Commitments, Loans or
Letter of Credit Interest hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder. In addition, each representation and warranty made, or
deemed to be made by a notice of any extension of credit (whether by means of a
Loan or a Letter of Credit), herein or pursuant hereto shall survive the making
of such representation and warranty, and no Lender shall be deemed to have
waived, by reason of making any extension of credit hereunder (whether by means
of a Loan or a Letter of Credit), any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
12.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.10 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. Each Obligor hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of the
Supreme Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to the
Credit Documents or the transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any
Credit Agreement
<PAGE>
-90-
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
12.11 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THE CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
12.12 Treatment of Certain Information; Confidentiality.
(a) Each Obligor acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
such Obligor or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and each Obligor hereby authorizes each Lender to
share any information delivered to such Lender by such Obligor and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, with any such subsidiary or affiliate,
it being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of paragraph (b) below as if it
were a Lender hereunder. Such authorization shall survive the repayment of the
Loans and Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative 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
non-public information supplied to it by any Obligor pursuant to this Agreement
that is identified by such Person as being confidential at the time the same is
delivered to the Lenders or the Administrative Agent, provided that nothing
herein shall limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii) to counsel for
any of the Lenders or the Administrative Agent, (iii) to regulatory personnel,
auditors or accountants, (iv) to the Administrative Agent or any other Lender
(or to Chase Securities, Inc.), (v) in connection with any litigation related to
the transactions contemplated by the Credit Agreement or the other Credit
Documents to which the Administrative Agent or any of the Lenders is a party,
(vi) to a subsidiary or affiliate of such Lender as provided in paragraph (a)
above or (vii) to (A) any assignee or participant (or prospective assignee or
participant) or (B) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Guarantor and its obligations
so long as such assignee, participant (or prospective assignee or participant)
or prospective counterparty first executes and delivers to the respective Lender
a confidentiality agreement containing substantially the terms set forth in this
Section 12.12 (or executes and delivers to such Lender an acknowledgement to the
effect that it is bound by the provisions of this Section 12.12(b), which
acknowledgement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans or Letter of Credit Interest hereunder); provided,
further, that in no event shall any Lender or the Administrative Agent be
obligated or required to return any materials furnished by any Obligor. The
obligations of any
Credit Agreement
<PAGE>
-91-
assignee that has executed a confidentiality agreement containing substantially
the terms set forth in this Section 12.12 shall be superseded by this Section
12.12 upon the date upon which such assignee becomes a Lender hereunder pursuant
to Section 12.06(b) hereof.
Credit Agreement
<PAGE>
-92-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
UNITED STATIONERS SUPPLY CO.
By __________________________________
Title:
Address for Notices:
2200 East Golf Road
Des Plaines, Illinois 60016-1267
Attention: Chief Financial Officer
(with a copy to the General
Counsel's Office)
Telecopier No.: (847) 699-4716
Telephone No.: (847) 699-5000 x2135
UNITED STATIONERS INC.
By __________________________________
Title:
Address for Notices:
2200 East Golf Road
Des Plaines, Illinois 60016-1267
Attention: Chief Financial Officer
(with a copy to the General
Counsel's Office)
Telecopier No.: (847) 699-4716
Telephone No.: (847) 699-5000 x2135
Credit Agreement
<PAGE>
-93-
LENDERS
THE CHASE MANHATTAN BANK
By __________________________________
Title:
BANK ONE, NA,
Individually and as Co-Agent
By __________________________________
Title:
ARAB BANKING CORPORATION
(B.S.C.)
By __________________________________
Title:
BANK OF AMERICA, N.A.,
Individually and as Co-Agent
By __________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION,
Individually and as Co-Agent
By __________________________________
Title:
HIBERNIA NATIONAL BANK
By __________________________________
Title:
Credit Agreement
<PAGE>
-94-
THE BANK OF NEW YORK
By __________________________________
Title:
BANK OF SCOTLAND
By __________________________________
Title:
COMERICA BANK,
Individually and as Co-Agent
By __________________________________
Title:
By __________________________________
Title:
ALLFIRST BANK,
Individually and as Co-Agent
By __________________________________
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By __________________________________
Title:
Credit Agreement
<PAGE>
-95-
KEY CORPORATE CAPITAL INC.,
Individually and as Co-Agent
By __________________________________
Title:
NATIONAL BANK OF CANADA,
a Canadian Chartered Bank
By __________________________________
Title:
By __________________________________
Title:
TRANSAMERICA BUSINESS CREDIT
CORP.
By __________________________________
Title:
UNION BANK OF CALIFORNIA, N.A.
By __________________________________
Title:
WACHOVIA BANK, N.A.,
Individually and as Co-Agent
By __________________________________
Title:
Credit Agreement
<PAGE>
-96-
THE DAI-ICHI KANGYO BANK, LTD.
By __________________________________
Title:
DEUTSCHE FINANCIAL SERVICES
By __________________________________
Title:
THE FUJI BANK, LIMITED
By __________________________________
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION
By __________________________________
Title:
NATIONAL CITY BANK
By __________________________________
Title:
BNP PARIBAS
By __________________________________
Title:
By __________________________________
Title:
Credit Agreement
<PAGE>
-97-
MICHIGAN NATIONAL BANK
By __________________________________
Title:
THE NORTHERN TRUST COMPANY
By __________________________________
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.,
Individually and as Co-Agent
By __________________________________
Title:
Credit Agreement
<PAGE>
-98-
THE CHASE MANHATTAN BANK,
as Administrative Agent
By __________________________________
Title:
Address for Notices to Chase, as
Administrative Agent:
The Chase Manhattan Bank
1 Chase Manhattan Plaza, 8th Floor,
New York, New York 10081
Attention: Loan and Agency Services Group
Telecopier No.: (212) 552-7500
Credit Agreement
<PAGE>
ANNEX I
Commitments and Lenders
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------
Revolving Tranche A Term Tranche A-1
Credit Loan Commitment Term Loan
Lender Commitment ($) ($) Commitment ($)
------ -------------- --- --------------
-------------------------------------------------------------------------------------
<S> <C> <C> <C>
The Chase Manhattan Bank 15,625,000.00 3,259,192.85 0.00
-------------------------------------------------------------------------------------
Bank One, NA 19,375,000.00 4,041,398.87 12,500,000.00
-------------------------------------------------------------------------------------
Arab Banking Corporation
(B.S.C.) 14,375,000.00 2,998,457.21 7,500,000.00
-------------------------------------------------------------------------------------
Bank of America, N.A. 13,750,000.00 2,868,089.53 12,500,000.00
-------------------------------------------------------------------------------------
PNC Bank, National Association 13,750,000.00 2,868,089.53 10,000,000.00
-------------------------------------------------------------------------------------
Hibernia National Bank 13,125,000.00 2,737,721.80 0.00
-------------------------------------------------------------------------------------
The Bank of New York 10,000,000.00 2,085,883.28 0.00
-------------------------------------------------------------------------------------
Bank of Scotland 10,000,000.00 2,085,883.28 4,500,000.00
-------------------------------------------------------------------------------------
Comerica Bank 10,000,000.00 2,085,883.28 10,000,000.00
-------------------------------------------------------------------------------------
Allfirst Bank 10,000,000.00 2,085,883.27 10,000,000.00
-------------------------------------------------------------------------------------
General Electric Capital 10,000,000.00 2,085,883.28 0.00
Corporation
-------------------------------------------------------------------------------------
Key Corporate Capital Inc. 10,000,000.00 2,085,883.28 10,000,000.00
-------------------------------------------------------------------------------------
National Bank of Canada, a 10,000,000.00 2,085,883.28 0.00
Canadian Chartered Bank
-------------------------------------------------------------------------------------
Transamerica Business Credit 10,000,000.00 2,085,883.28 5,500,000.00
Corp.
-------------------------------------------------------------------------------------
Union Bank of California, N.A. 10,000,000.00 2,085,883.28 7,500,000.00
-------------------------------------------------------------------------------------
Wachovia Bank, N.A. 10,000,000.00 2,085,883.28 10,000,000.00
-------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. 7,812,500.00 1,629,596.32 0.00
-------------------------------------------------------------------------------------
Deutsche Financial Services 7,812,500.00 1,629,596.32 0.00
-------------------------------------------------------------------------------------
The Fuji Bank, Limited 7,812,500.00 1,629,596.32 4,500,000.00
-------------------------------------------------------------------------------------
The Mitsubishi Trust and 7,812,500.00 1,629,596.32 7,500,000.00
Banking Corporation
-------------------------------------------------------------------------------------
National City Bank 7,812,500.00 1,629,596.32 7,500,000.00
-------------------------------------------------------------------------------------
BNP Paribas 7,812,500.00 1,629,596.32 7,500,000.00
-------------------------------------------------------------------------------------
Michigan National Bank 6,875,000.00 1,434,044.75 5,500,000.00
-------------------------------------------------------------------------------------
The Northern Trust Company 6,250,000.00 1,303,677.07 7,500,000.00
-------------------------------------------------------------------------------------
Bank Austria Creditanstalt 0.00 0.00 10,000,000.00
Corporate Finance, Inc.
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
Total: 250,000,000.00 52,147,082.32 150,000,000.00
-------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A
UNITED STATIONERS SUPPLY CO.
<TABLE>
<CAPTION>
====================================================================================================================================
Jurisdiction Debtor and Address Secured Party and Address File Date File Number Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Arizona Secretary of United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 827094 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Arizona Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 827094 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Maricopa County, AZ United Stationers Supply Co. The Chase Manhattan Bank 04/06/95 95-0190659 UCC1
2200 East Golf Road 1 Chase Manhattan Plaza
Des Plaines, IL 60016 New York, New York 10081
====================================================================================================================================
Maricopa County, AZ United Stationers Supply Co. The Chase Manhattan Bank 04/06/95 95-0190660 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Arizona Secretary of United Stationers Supply Co. Compaq Financial Services 02/02/00 1102700 UCC-1
State 2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 9510260401 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/19/97 9510260401 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 12/27/99 9510260401 CONT
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 04/18/95 9511160767 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
</TABLE>
Page 1 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/19/97 9511160767 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 12/27/99 9511160767 CONT
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 05/12/95 9513661297 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/19/97 9513661297 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
California Secretary of United Stationers Supply Co. The Chase Manhattan Bank 12/27/99 9513661297 CONT
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
California Secretary of United Stationers Supply Co. Compaq Financial Services 03/14/00 7560754 UCC-1
State 2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Sacramento County, CA United Stationers Supply Co. The Chase Manhattan Bank 04/20/95 950420/1098 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Sacramento County, CA United Stationers Supply Co. The Chase Manhattan Bank 04/12/00 950420/1098 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Sacramento County, CA United Stationers Supply Co. The Chase Manhattan Bank 04/04/00 2000404/0217 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Sacramento County, CA United Stationers Supply Co. The Chase Manhattan Bank 04/04/00 2000404/0218 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Sacramento County, CA United Stationers Supply Co. The Chase Manhattan Bank 04/20/95 950420/1098 Fixt
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
</TABLE>
Page 2 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Sacramento County, CA United Stationers Supply Co. The Chase Manhattan Bank 04/12/00 950420/1098 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Colorado Central Index United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 952027471 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Colorado Central Index United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 952027471 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Colorado Central Index United Stationers Supply Co. The Chase Manhattan Bank 06/23/97 952027471 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Colorado Central Index United Stationers Supply Co. Compaq Financial Services 02/02/00 20002009664 UCC1
2200 East Golf Road Corporation
Des Plaines, IL 60016 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Hillsborough County, FL United Stationers Supply Co. The Chase Manhattan Bank 04/04/95 7715/1657 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Hillsborough County, FL United Stationers Supply Co. The Chase Manhattan Bank 12/29/99 9982/1895 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Gwinnett County, GA United Stationers Supply Co. The Chase Manhattan Bank 04/06/95 1995-3157 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Gwinnett County, GA United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 1995-3157 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Gwinnett County, GA United Stationers Supply Co. The Chase Manhattan Bank 12/30/99 1995-3157 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Gwinnett County, GA United Stationers Supply Co. The Chase Manhattan Bank 06/01/98 98-6641 UCC1
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
</TABLE>
Page 3 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Gwinnett County, GA United Stationers Supply Co. Compaq Financial Services 02/02/00 00-1250 UCC1
2200 East Golf Road Corporation
Des Plaines, IL 60016 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Gwinnett County, GA United Stationers Supply John O. Adams Jr. 08/05/99 1028/68 FIFA
PO Box 1370
Decautur, GA 30031
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 3387140 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 03/05/97 3387140 ASSIGN
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 04/16/98 3387140 AMEND
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 01/13/00 3387140 CONT
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 3387141 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 03/05/97 3387141 ASSIGN
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 04/16/98 3387141 AMEND
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 01/13/00 3387141 CONT
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
</TABLE>
Page 4 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Illinois Secretary of State United Stationers Supply Co. StorageTek Distributed Systems 07/17/95 3423540 UCC-1
2200 East Golf Road Divisions, Inc.
Des Plaines, IL 60016-1267 801 Warrenville Road
Lisle, IL 60532
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. AT&T Systems Leasing 10/18/95 3423540 ASSIGN
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 2555 Telegraph Road
Bloomfield Hills, MI 48303
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. Sumner Group Inc. 10/17/97 3751672 UCC-1
2200 East Golf Road P.O. Box 2222/2121 Hampton
Des Plaines, IL 60016-1267 St Louis, MO 63139
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. Sumner Group Inc. 10/17/97 3751673 UCC-1
2200 East Golf Road P.O. Box 2222/2121 Hampton
Des Plaines, IL 60016-1267 St Louis, MO 63139
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. USS Receivables Company, 04/02/98 3827955 UCC-1
2200 East Golf Road Ltd.
Des Plaines, IL 60016-1267 2200 E. Golf Road
Des Plaines, IL 60016
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. Mellon First United Leasing 08/23/99 4083042 UCC-1
810 Kimberly Street 100 Corporate North
Carol Stream, IL 60188 Bannockburn, IL 60015
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. Sumner Group Inc. 10/20/99 4111187 UCC-1
2200 East Golf Road P.O. Box 2222/2121 Hampton
Des Plaines, IL 60016-1267 St Louis, MO 63139
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. Compaq Financial Services 10/29/99 4116203 UCC-1
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Illinois Secretary of State United Stationers Supply Co. Compaq Financial Services 02/18/00 4160462 UCC-1
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
</TABLE>
Page 5 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Cook County, IL United Stationers Supply Co. Illinois Department of Revenue 05/25/00 381335 STL
2200 East Golf Road Lien Unit
Des Plaines, IL 60016-1267 PO Box 19035
Springfiled, IL 62794
====================================================================================================================================
Du Page County, IL United Stationers Supply Co. Oce Office Systems 03/25/96 960-0921 UCC1
2200 East Golf Road 5450 N. Cumberline
Des Plaines, IL 60016 Chicago, IL 60666
====================================================================================================================================
Marion County, IN United Stationers Supply Co. The Chase Manhattan Bank 04/06/95 03228 Fixt
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Marion County, IN United Stationers Supply Co. The Chase Manhattan Bank 04/01/97 03228 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Marion County, IN United Stationers Supply Co. The Chase Manhattan Bank 01/24/00 03228 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60020 Jericho, NY 11753
====================================================================================================================================
Jefferson Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 28198246 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Jefferson Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 02/1897 28198246 ASSIGN
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Jefferson Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 04/06/98 28198246 AMEND
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Jefferson Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 12/29/99 28198246 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
LaFayette Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 04/07/95 362200 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
LaFayette Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 362200 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
</TABLE>
Page 6 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
LaFayette Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 04/15/98 362200 Amend
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
LaFayette Parish, LA United Stationers Supply Co. The Chase Manhattan Bank 12/29/99 362200 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Maryland Secretary of State United Stationers Suppy Co. Dana Commerical Credit 05/12/93 131328048 UCC-1
7441 Candlewood Rd. Corporation
Hanover, MD 21076 201 West Big Beaver Rd
Troy, MI 48084
====================================================================================================================================
Maryland Secretary of United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 151018445 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Maryland Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/18/95 151018445 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Maryland Secretary of United Stationers Supply Co. The Chase Manhattan Bank 04/19/95 151107596 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Maryland Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 151107596 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Maryland Secretary of United Stationers Supply Co. The Chase Manhattan Bank 05/02/95 151228348 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Maryland Secretary of United Stationers Supply Co. Compaq Financial Services 02/02/00 181034770 UCC-1
State 2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Anne Arundel County, United Stationers Supply Co. Dana Commercial Credit 05/21/93 289051 UCC-1
MD 7441 Candlwood Rd. Corporation Vol594Pg111
Hanover, MD 21076 201 West Big Beaver Road
Troy, MI 48084
====================================================================================================================================
</TABLE>
Page 7 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Anne Arundel County, Pate, Calvin S. Ford Motor Credit Company 01/31/95 Bk104Pg34 JL
MD POE United Stationers Central Collections Dept.
7441 Candlewood Rd. PO BOX 3187
Hanover, MD 21076 Melvinindale, MD 48122
====================================================================================================================================
Middlesex County, MA United Stationers Supply Co. The Chase Manhattan Bank 04/04/95 25266/349 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Middlesex County, MA United Stationers Supply Co. The Chase Manhattan Bank 02/21/97 25266/349 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Middlesex County, MA United Stationers Supply Co. The Chase Manhattan Bank 01/11/00 25266/349 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Woburn City, MA United Stationers Supply Co. The Chase Manhattan Bank 04/18/95 M-352 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Woburn City, MA United Stationers Supply Co. The Chase Manhattan Bank 02/19/97 M-352 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Woburn City, MA United Stationers Supply Co. The Chase Manhattan Bank 12/28/99 M-352 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Dakota County, MN United Stationers Supply Co. The Chase Manhattan Bank 04/24/95 262064 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Dakota County, MN United Stationers Supply Co. The Chase Manhattan Bank 02/21/97 262064 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Dakota County, MN United Stationers Supply Co. The Chase Manhattan Bank 12/30/99 262064 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Dakota County, MN United Stationers Supply Co. The Chase Manhattan Bank 05/15/95 319493/ FIXT
2200 East Golf Road 4 Metrotech Center, 13th Fl. 1276974
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Clay County, MO United Stationers Supply Co. The Chase Manhattan Bank 04/05/95 H160242 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
</TABLE>
Page 8 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Clay County, MO United Stationers Supply Co. The Chase Manhattan Bank 03/17/97 H160242 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Clay County, MO United Stationers Supply Co. The Chase Manhattan Bank 12/28/99 H160242 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Clay County, MO United Stationers Supply Co. Compaq Financial Services 02/02/00 H171209 UCC1
2200 East Golf Road Corporation
Des Plaines, IL 60016 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
New Jersey Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 1629135 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
New Jersey Secretary of United Stationers Supply Co. The Chase Manhattan Bank 02/28/97 1629135 ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
New Jersey Secretary of United Stationers Supply Co. The Chase Manhattan Bank 01/24/00 1629135 CONT
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
New Jersey Secretary of United Stationers Supply Mellon First United Leasing 12/05/96 1736911 UCC-1
State 77 Executive 100 Corporate North
Edison, NJ., 08817 Bannockburn, IL 60015
====================================================================================================================================
New Jersey Secretary of United Stationers Supply Co. Compaq Financial Services 02/02/00 1954719 UCC-1
State 2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Green County, NY United Stationers Supply Co. U.S. Materials Handling Crop. 09/19/96 96/566 UCC-1
PO BOX 366 PO Box 366
2231 State Route 5 2231 State Route 5
Utica, NY 13502 Utica, NY 13502
====================================================================================================================================
Green County, NY United Stationers Supply Co. Desmoureau Vending Corp. 11/20/96 96/722 UCC-1
Rte 9W 421 old Niskayuna Rd.
Coxsackie, NY Latham, NY 1220
====================================================================================================================================
</TABLE>
Page 9 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Green County, NY United Stationers Supply Co. Desmoureau Vending Corp. 11/20/96 96/723 UCC-1
Rte 9W 421 old Niskayuna Rd.
Coxsackie, NY 12051 Latham, NY 1220
====================================================================================================================================
Green County, NY United Stationers Supply Co. Desmoureau Vending Corp. 11/20/96 96/724 UCC-1
Rte 9W 421 old Niskayuna Rd.
Coxsackie, NY 12051 Latham, NY 1220
====================================================================================================================================
Green County, NY United Stationers Supply Co. U.S. Material Handling 01/10/97 96/16 UCC-1
High 9 W & Wolf Road Route 5 Herkimer Road
Coxsackie, NY 12051 Utica, NY 73503
====================================================================================================================================
Green County, NY United Stationers Supply Co. Compaq Financial Services 02/03/00 2000/78 UCC-1
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Mecklenburg County, NC United Stationers Supply Co. The Chase Manhattan Bank 04/03/95 4502 Fixt
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016 Brooklyn, NY 11245
====================================================================================================================================
Mecklenburg County, NC United Stationers Supply Co. The Chase Manhattan Bank 02/19/97 4502 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Mecklenburg County, NC United Stationers Supply Co. The Chase Manhattan Bank 12/30/99 4502 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Mecklenburg County, NC United Stationers Supply Co. Compaq Financial Services 02/02/00 959 UCC1
2200 East Golf Road Corporation
Des Plaines, IL 60016 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Butler County, OH United Stationers Supply Co. The Chase Manhattan Bank 04/03/95 95-9201 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60017 Brooklyn, NY 11245
====================================================================================================================================
Butler County, OH United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 95-9201 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60018 Jericho, NY 11753
====================================================================================================================================
Butler County, OH United Stationers Supply Co. The Chase Manhattan Bank 01/18/00 95-9201 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60019 Jericho, NY 11753
====================================================================================================================================
</TABLE>
Page 10 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Franklin County, OH United Stationers Supply Co. The Chase Manhattan Bank 04/06/95 04380E19 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60020 Brooklyn, NY 11245
====================================================================================================================================
Franklin County, OH United Stationers Supply Co. The Chase Manhattan Bank 02/20/97 04380E19 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60021 Jericho, NY 11753
====================================================================================================================================
Franklin County, OH United Stationers Supply Co. The Chase Manhattan Bank 12/28/99 04380E19 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60022 Jericho, NY 11753
====================================================================================================================================
Franklin County, OH United Stationers Supply Co. The Chase Manhattan Bank 05/30/95 04424I13 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60023 Brooklyn, NY 11245
====================================================================================================================================
Franklin County, OH United Stationers Supply Co. The Chase Manhattan Bank 02/20/97 04424I13 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60024 Jericho, NY 11753
====================================================================================================================================
Franklin County, OH United Stationers Supply Co. The Chase Manhattan Bank 12/28/99 04424I13 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60025 Jericho, NY 11753
====================================================================================================================================
Summit Co., OH United Stationers Supply Co. Compaq Financial Services 02/02/00 21039883 UCC-1
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Oklahoma County, OK United Stationers Supply Co. Compaq Financial Services 02/02/00 5881 UCC-1
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Oregon Secretary of United Stationers Supply, Co. The Chase Manhattan Bank 04/05/95 S47189/ UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor 261035
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Oregon Secretary of United Stationers Supply, Co. The Chase Manhattan Bank 02/25/97 S47189/ ASSIGN
State 2200 East Golf Road 200 Jericho Quadrangle 261035
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
</TABLE>
Page 11 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Oregon Secretary of United Stationers Supply, Co. The Chase Manhattan Bank 12/29/97 S47189/ CONT
State 2200 East Golf Road 200 Jericho Quadrangle 261035
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Oregon Secretary of United Stationers Supply, Co. Compaq Financial Services 01/04/00 495778 UCC-1
State 2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Allegheny County, PA United Stationers Supply Co. The Chase Manhattan Bank 04/25/95 95-2669 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60025 Brooklyn, NY 11245
====================================================================================================================================
Allegheny County, PA United Stationers Supply Co. The Chase Manhattan Bank 02/19/97 95-2669 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60025 Jericho, NY 11753
====================================================================================================================================
Allegheny County, PA United Stationers Supply Co. The Chase Manhattan Bank 12/27/99 95-2669 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60025 Jericho, NY 11753
====================================================================================================================================
Allegheny County, PA United Stationers Supply Co. BCL Capital 05/13/99 99-3450 UCC1
2200 East Golf Road 115 West College Drive
Des Plaines, IL 60025 Marshall, MN 56258
====================================================================================================================================
Allegheny County, PA United Stationers Supply Co. Compaq Financial Services 02/02/00 00-776 UCC1
2200 East Golf Road Corporation
Des Plaines, IL 60025 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Tennesse Secretary of United Stationers Supply, Co. The Chase Manhattan Bank 09/26/95 474856 UCC-1
State 2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Shelby County, TN United Stationers Supply Co. The Chase Manhattan Bank 04/05/95 H53473 Fixt
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60025 Brooklyn, NY 11245
====================================================================================================================================
Shelby County, TN United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 FA1064 Fixt
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60025 Brooklyn, NY 11245
====================================================================================================================================
</TABLE>
Page 12 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Texas Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 04/11/95 95-069508 UCC-1
2200 East Golf Road 4 Metrotech Center, 13th Floor
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Texas Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 02/18/97 95-069508 ASSIGN
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Texas Secretary of State United Stationers Supply Co. The Chase Manhattan Bank 12/28/99 95-069508 CONT
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, New York 11753
====================================================================================================================================
Texas Secretary of State United Stationers Supply Co. Konica Business Machines 10/02/96 96-195514 UCC-1
119 Regal Row 1055 Westlakes Drive
Dallas, TX 75247 Berwyn PA 19312
====================================================================================================================================
Texas Secretary of State United Stationers Supply Co. Shackelford Incorporated 10/02/97 97-205550 UCC-1
2155 Silber Road 2301 Preston Avenue
Houston, TX USA 77055 Houston, TX USA 77003
====================================================================================================================================
Texas Secretary of State United Stationers Supply Co. Brice, Paul 07/02/98 98-134747 UCC-1
116 Slaton Rd. 2326-55th St.,
Lubbock TX 79404 Lubbock, TX 79412
====================================================================================================================================
Texas Secretary of State United Stationers Supply Co. Compaq Financial Services 02/02/00 00-422523 UCC-1
2200 East Golf Road Corporation
Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
Dallas County, TX United Stationers Supply Co. The Chase Manhattan Bank 04/03/95 95064/04074 UCC1
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60025 Brooklyn, NY 11245
====================================================================================================================================
Dallas County, TX United Stationers Supply Co. The Chase Manhattan Bank 03/11/97 56064/04074 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60025 Jericho, NY 11753
====================================================================================================================================
Dallas County, TX United Stationers Supply Co. The Chase Manhattan Bank 01/19/00 56064/04074 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60025 Jericho, NY 11753
====================================================================================================================================
Dallas County, TX United Stationers Supply Co. Timothy Brumley 03/23/98 98056/00663 JL
2200 East Golf Road 903 Link
Des Plaines, IL 60025 Red Oak, TX 75154
====================================================================================================================================
</TABLE>
Page 13 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Harris County, TX United Stationers Supply Co. Shackelford Incorporated 10/07/97 927702
2155 Preston Avenue 2301 Preston Ave
Houston, TX 77003 Houston, TX 777055
====================================================================================================================================
Utah Division of United Stationers Supply Co. The Chase Manhattan Bank 04/10/95 433991 UCC-1
Corporation and 2200 East Golf Road 4 Metrotech Center, 13th Floor
Commerical Code Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Utah Division of United Stationers Supply Co. Compaq Financial Services 08/07/53 669417 UCC-1
Corporation and 2200 East Golf Road Corporation
Commerical Code Des Plaines, IL 60016-1267 100 Woodbridge Center Drive,
Suite 202
Woodbridge, NJ 07095
====================================================================================================================================
King County, WA United Stationers Supply Co. The Chase Manhattan Bank 04/10/95 9504101026 FIXT
2200 East Golf Road 1 Chase Manhattan Plaza
Des Plaines, IL 60025 New York, New York 10081
====================================================================================================================================
</TABLE>
UNITED STATIONERS INC.
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Illinois Secretary of State United Stationers, Inc. AT&T Capital Leasing 04/16/97 3678236 UCC-1
2200 E Golf Road Services, Inc.
Des Plaines, IL 60016 550 Cochituate Rd
PO Box 9104
Framingham, MA 01701
====================================================================================================================================
Illinois Secretary of State United Stationers, Inc. Oce Office Systems 03/21/96 3519922 UCC-1
898 Carol Court 5450 N. Cumberland
Carol Stream, IL 60188 Chicago, IL 60656
====================================================================================================================================
Illinois Secretary of State United Stationers, Inc. Oce Office Systems 03/21/96 3519932 UCC-1
1900 S. Des Plaines 5450 N. Cumberland
Forest Park, IL 60136 Chicago, IL 60656
====================================================================================================================================
Illinois Secretary of State United Stationer Sumner Group Inc. 04/14/00 4193913 UCC-1
2000 Wolf Business Park PO Box 2222/2121 Hampton
Greenville, IL 62246 St. Louis, MO 63139
====================================================================================================================================
</TABLE>
LAGASSE BROS., INC.
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
California Secretary of LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 9631860522 UCC-1
State 1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
</TABLE>
Page 14 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Los Angeles County, CA LaGasse Bros. Inc. The Chase Manhattan Bank 04/05/95 95-480967 FIXT
2200 East Golf Road 4 Metrotech Center, 13th Fl.
Des Plaines, IL 60016-1267 Brooklyn, NY 11245
====================================================================================================================================
Los Angeles County, CA LaGasse Bros. Inc. The Chase Manhattan Bank 02/27/97 95-480967 Assig
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, NY 11753
====================================================================================================================================
Los Angeles County, CA LaGasse Bros. Inc. The Chase Manhattan Bank 01/07/00 95-480967 Cont
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016-1267 Jericho, NY 11753
====================================================================================================================================
Fulton County, GA LaGasse Bros. Inc. Hibernia National Bank 02/04/91 752361 UCC-1
425 9th St. PO Box 61540
New Orleans, LA 70115 313 Carondelet St.
New Orleans, LA 70161
====================================================================================================================================
Fulton County, GA LaGasse Bros. Inc. Hibernia National Bank 09/25/95 752361 Cont
425 9th St. PO Box 61540
New Orleans, LA 70115 313 Carondelet St.
New Orleans, LA 70161
====================================================================================================================================
Fulton County, GA LaGass Brother, Inc. N.J. Malin & Associates, Inc. 04/04/96 60199606446 UCC-1
5215-E Westgate Dr S.W. 15870 Midway Road
Atlanta, GA 30336 Addison, TX 75244
====================================================================================================================================
Fulton County, GA LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 60199622053 UCC-1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Florida Secretary of State LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 9.6E+11 UCC-1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State Lagassee Bros., Inc. The Chase Manhattan Bank 11/12/96 3610665 UCC-1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, Louisiana 70123 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State Lagassee Bros., Inc. The Chase Manhattan Bank 04/16/98 3610665 AMEND
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, Louisiana 70123 Jericho, New York 11753
====================================================================================================================================
Illinois Secretary of State Lagassee Bros., Inc. N.J. Malin & Associates, Inc. 03/21/96 3519723 UCC-1
1161 Ellis Street 15870 Midway Road
Bensenville, IL 60106 Addison, TX 75244
====================================================================================================================================
</TABLE>
Page 15 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Indiana of Secretary of LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 2087823 UCC-1
State 1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Indiana of Secretary of LaGasse Brothers, Inc. N.J. Malin & Associates, Inc. 06/01/98 2194483 UCC-1
State 2402 North Shadeland 15870 Midway Road
Suite H Addison, TX 75244
Indianapolis, IN 46219
====================================================================================================================================
Jefferson Parish, LA LaGasse Bros. Inc. The Chase Manhattan Bank 11/04/96 26210626 UCC-1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Jefferson Parish, LA LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 26210808 UCC-1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Jefferson Parish, LA LaGasse Bros. Inc. The Chase Manhattan Bank 0415/98 26210808 Amend
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Orleans Parish, LA LaGasse Brothers Inc. AT&T Credit Corporation 02/27/96 36-103170 UCC-1
425 9th Street, 2 Gatehall Drive
New Orleans, LA 70115 Parsippany, NJ 07054
====================================================================================================================================
North Carolina Secretary LaGasse Bros. Inc. The Chase Manhattan Bank 11/13/96 1396802 UCC-1
of State 1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Mecklenburg County, NC LaGasse Bros. Inc. Hibernia National Bank 02/19/91 2285 UCC1
425 Ninth Street PO Box 61540
New Orleans, LA 70115 New Orleans, LA 70161
====================================================================================================================================
Mecklenburg County, NC LaGasse Bros. Inc. Hibernia National Bank 09/12/95 2285 Cont
425 Ninth Street PO Box 61540
New Orleans, LA 70115 New Orleans, LA 70161
====================================================================================================================================
Mecklenburg County, NC LaGasse Bros., Inc The Chase Manhattan Bank 11/13/96 15793 UCC1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA Jericho, NY 11753
====================================================================================================================================
Cuyahoga County, OH LaGasse Bros., Inc The Chase Manhattan Bank 11/22/96 1359724 UCC1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA Jericho, NY 11753
====================================================================================================================================
</TABLE>
Page 16 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Texas Secretary of State LaGasse Brothers Inc. Raymond Leasing Corporation 10/28/96 96-213848 UCC-1
45AA Marco 20 South Canal Street
San Antonio, TX 78218 Greene, NY 13778
====================================================================================================================================
Texas Secretary of State LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 96-221299 UCC-1
1525 Kuebell Street 200 Jericho Quadrangle
Harahan, LA 70123 Jericho, New York 11753
====================================================================================================================================
Texas Secretary of State LaGasse Brothers, Inc. Raymond Leasing Corporation 02/03/97 97-020158 UCC-1
4830 Lakawana 20 South Canal Street
Dallas, TX 75247 Greene, NY 13778
====================================================================================================================================
Washington State LaGasse Bros. Inc. The Chase Manhattan Bank 11/12/96 96-317-0029 UCC-1
Department of Licensing 1525 Kuebell Street 200 Jericho Quadrangle
Harahan, Louisiana 70123 Jericho, New York 11753
====================================================================================================================================
</TABLE>
AZERTY INCORPORATED
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
New York Secretary of Azerty Incorporated The Chase Manhattan Bank 04/13/98 78035 UCC-1
State 2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, Illinois 60016 Jericho, New York 11753
====================================================================================================================================
New York Secretary of Azerty Inc. Minolta Leasing Services 04/23/97 82477 UCC-1
State 13 Centre Drive 1055 Westlakes Drie
Orchard Park, NY 14127 Berwyn, PA 19312
====================================================================================================================================
New York Secretary of Azerty Inc. The Chase Manhattan Bank 04/14/98 79605 UCC-1
State 13 Centre Drive 200 Jericho Quadrangle
Orchard Park, NY 14127 Jericho, New York 11753
====================================================================================================================================
Erie County, NY Azerty Inc. Minolta Leasing Services 04/28/97 9704280268 UCC-1
13 Centre Drive 1055 Westlakes Drie
Orchard Park, NY 14127 Berwyn, PA 19312
====================================================================================================================================
Erie County, NY Azerty Incorporated The Chase Manhattan Bank 04/13/98 9804131359 UCC-1
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, Illinois 60016 Jericho, New York 11753
====================================================================================================================================
Erie County, NY Azerty Inc. The Chase Manhattan Bank 04/15/98 9804151255 UCC-1
13 Centre Drive 200 Jericho Quadrangle
Orchard Park, NY 14127 Jericho, New York 11753
====================================================================================================================================
Erie County, NY Azerty Incorporated Minolta Leasing Services 04/28/97 199704280268 UCC1
13 Centre Drive 1055 Westlakes Drive
Orchard Park, NY 14127 Berwyn, PA 19312
====================================================================================================================================
</TABLE>
Page 17 of 18
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
====================================================================================================================================
Erie County, NY Azerty Incorporated The Chase Manhattan Bank 04/13/98 199804131359 Fixt
2200 East Golf Road 200 Jericho Quadrangle
Des Plaines, IL 60016 Jericho, NY 11753
====================================================================================================================================
Erie County, NY Azerty Incorporated The Chase Manhattan Bank 04/15/98 199804151255 Fixt
13 Centre Drive 200 Jericho Quadrangle
Orchard Park, NY 14127 Jericho, NY 11753
====================================================================================================================================
Franklin County, PA Azerty Incorporated he Chase Manhattan Bank 04/18/98 68481 UCC1
13 Centre Drive 200 Jericho Quadrangle
Orchard Park, NY 14127 Jericho, NY 11753
====================================================================================================================================
Franklin County, PA Azerty Incorporated Associates Commercial 04/07/99 69552 UCC1
23 Krimer Road Corporation
Chambersburg, PA 17201 8001 Ridgepoint Dr.
Mechanisburg, PA 17055
====================================================================================================================================
Franklin County, PA Azerty Incorporated Associates Commercial 05/26/99 69757 UCC1
23 Krimer Road Corporation
Chambersburg, PA 17201 8001 Ridgepoint Dr.
Mechanisburg, PA 17055
====================================================================================================================================
Franklin County, PA Azerty Incorporated Associates Commercial 06/02/99 69785 UCC1
23 Krimer Road Corporation
Chambersburg, PA 17201 8001 Ridgepoint Dr.
Mechanisburg, PA 17055
====================================================================================================================================
Franklin County, PA Azerty Incorporated Associates Commercial 07/09/99 69923 UCC1
23 Krimer Road Corporation
Chambersburg, PA 17201 8001 Ridgepoint Dr.
Mechanisburg, PA 17055
====================================================================================================================================
Franklin County, PA Azerty Incorporated Raymond Leasing Corporation 07/28/99 69971 UCC1
23 Krimer Road 20 S Canal St.
Chambersburg, PA 1720127 Green, NY 13778
====================================================================================================================================
</TABLE>
Page 18 of 18
<PAGE>
SCHEDULE I
INDEBTEDNESS AND LIENS
Part A - Existing Indebtedness (as of May 31, 2000 unless otherwise noted)
United Stationers Inc. and United Stationers Supply Co.:
1. Guarantor Note.
2. Indebtedness of $100,000,000.00, 8 3/8% Senior Subordinated Notes due 2008
pursuant to the Indenture dated as of April 15, 1998 among United
Stationers Supply Co., United Stationers Inc., Lagasse Bros., Inc., Azerty
Incorporated, Positive ID Wholesale Inc., AP Support Services Incorporated
and The Bank of New York, as Trustee, as amended to the date hereof.
3. Industrial Development Bond Loan in the amount of $7,500,000 as evidenced
by (i) Loan Agreement dated as of October 1, 1990 between the Development
Authority of Gwinnett County, Georgia ("Georgia") and United Stationers
Supply Co.; (ii) the Promissory Note dated December 7, 1982 executed by
United Stationers Supply Co. in favor of Georgia in the amount of
$7,500,000; (iii) Trust Indenture dated as of October 1, 1990 between
Georgia and PNC (or its successor in interest); (iv) Reimbursement, Credit
and Security Agreement dated as of October 1, 1990 between United
Stationers Supply Co. and PNC (6448 Best Friend Road, Norcross, Georgia).
Outstanding Principal Amount $7,500,000.
4. Industrial Development Bond Loan in the amount of $7,500,000 as evidenced
by (i) Mortgage Note dated December 1, 1983 executed by United Stationers
Supply Co. in favor of the City of Des Plaines, Illinois ("Illinois") and
United Stationers Supply Co.; (ii) Assignment of Rents and Leases dated
December 1, 1983 executed by United Stationers Supply Co. in favor of PNC
(as successor in interest); (iii) Indenture of Trust dated as of December
1, 1983 between Illinois and PNC (as successor in trust); (iv) Guarantee
and Indemnification Agreement dated December 1, 1983 between United
Stationers Supply Co. and PNC, successor in interest (as supplemented)
(2200 E. Golf Road) and guaranteed by United Stationers Inc. Outstanding
Principal Amount $7,500,000.
5. Industrial Development Bond Loan in the amount of $8,000,000 as evidenced
by (i) Loan and Security Agreement dated December 1, 1984 between Anne
Arundel County, Maryland ("Maryland") and United Stationers Supply Co.;
(ii) Promissory Note in the amount of $8,000,000 dated December 27, 1984
executed by United Stationers Supply Co. in favor of Maryland; and (iii)
Indenture of Trust dated December 1, 1984 between Maryland and PNC (as
successor in interest); Guarantee and Indemnification Agreement between
United Stationers Inc., PNC (as successor in interest) and Maryland (as
supplemented)
Schedule I - Page 1
<PAGE>
(7441 Candlewood Road, Hanover, Maryland). Outstanding Principal Amount
$8,000,000.
6. Industrial Development Bond Loan in the amount of $6,800,000 as evidenced
by (i) Loan Agreement dated December 1, 1986 between the City of
Twinsburg, Ohio ("Ohio") and United Stationers Supply Co.; (ii) Indenture
of Trust dated December 1, 1986 between Ohio and Bank of New York (as
successor in interest) (as supplemented); and (iii) Guaranty Agreement
dated December 1, 1986 between United Stationers Supply Co. and Bank of
New York (as successor in interest) (Twinsburg, Ohio). Outstanding
Principal Amount $6,800,000.
7. Intercompany Indebtedness of United Stationers Supply Co. to United
Stationers Inc. Outstanding Principal Amount $96,917,998.00.
8. Intercompany Indebtedness of United Stationers Supply Co. to United
Stationers Hong Kong Limited and United Worldwide Limited in the amount of
$376,300.00.
9. United Stationers Inc. has guaranteed the obligations of United Stationers
Supply Co. under the leases for its facilities located at (i) 5440
Stationers Way, Sacramento, California, and (ii) 3365 Enterprise Avenue,
Ft. Lauderdale, Florida.
10. United Stationers Supply Co. has guaranteed the obligations of Lagasse
Bros., Inc. under the lease, as amended, for its facilities located at
1525 Kuebel Street, Harahan, Louisiana.
11. The letters of credit set forth on the Letters of Credit Chart (attached
hereto) issued on behalf of United Stationers Inc. and its Subsidiaries to
remain outstanding or backstopped.
12. Intercompany Indebtedness of United Stationers Supply Co. to Lagasse Bros.
Outstanding Principal Amount $4,881,466.00.
13. All Indebtedness corresponding to the lien search results shown in
Schedule I, Part B.
Lagasse Bros., Inc.:
0 1. All Indebtedness corresponding to the lien search results shown in Schedule
I, Part B.
Azerty Incorporated:
1. Indebtedness of Azerty Incorporated to United Stationers Supply Co.
Outstanding Principal Amount $55,767,603.00.
2. Mannesmann Tally Supplies (Azerty Incorporated - January 1997).
Schedule I - Page 2
<PAGE>
3. Lexmark Authorized Supplier Wholesale Agreement (Azerty Incorporated -
December '92).
4. All Indebtedness corresponding to the lien search results shown in Schedule
I, Part B.
5. All agreements comprising the Not Yet Delivered Competitive Information
referred to in section 5.6 of the Stock Purchase Agreement, dated February 10,
1998.
6. Indebtedness relating to the Capitalized Equipment Leases listed below:
Outstanding
Description of Balance
Equipment Model # Lessor @ 6/30/00
---------------------- ------------- --------------- --------------
Dockstocker Lift Truck 01949-97 Raymond Leasing $ 11,693.65
DSS-350
Order Picker-EASI 97-AE18589 Raymond Leasing $ 12,816.68
OPC30TT
Order Picker-EASI 97-AE19280 Raymond Leasing $ 13,635.52
OPC30TT
Reach Truck-R30TT N/A Raymond Leasing $ 17,049.10
Order Picker-EASI 98-AE20253 Raymond Leasing $ 17,008.52
OPC30TT
Order Picker-EASI 99-AE22523 Raymond Leasing $ 14,933.56
OPC30TT
Clark Forklift-OP15 0104-PM9296 Forklifts, Inc. $ 16,132.59
Clark Forklift-ESM1115S 0292-8722 Forklifts, Inc. $ 19,442.09
Clark Forklift-OP15 0059-PM9296 Forklifts, Inc. $ 17,434.74
Clark Forklift-ESM1115S 0326-8717FB Forklifts, Inc. $ 16,973.79
Clark Powerworker HWD30 0250-6896FG Forklifts, Inc. $ 5,870.71
Dockstocker Lift Truck 02571-98 Associated $ 20,301.28
DSS-350 Material
Handling
Schedule I - Page 3
<PAGE>
Reach Truck-R40TT DZ-A-98-10981 Associated $ 22,341.60
Material
Handling
Speedy Packer Floor SP5428 Sealed Air $ 14,885.00
Model 970
Speedy Packer Floor SP4882 Sealed Air $ 11,234.00
Model 970 ---------------
Total Azerty Capital Equipment Leases $ 231,752.83
===============
Miscellaneous:
o The following shall constitute "Existing Indebtedness" as of the Effective
Date so long as Corporate Express CallCenter Services, Inc. becomes a
Subsidiary of United Stationers Supply Co. after the acquisition of the
stock thereof by United Stationers Supply Co.:
1. That certain Promissory Note in aggregate principal amount (as of April 1,
1999) of $1,245,977, as amended pursuant to that certain Promissory Note
Modification Agreement dated as of April 1, 1999 by and between Corporate
Express CallCenter Services, Inc. and The First National Bank of Maryland and as
further amended, modified, renewed or supplemented to the Effective Date, and
secured by that certain Deed of Trust dated as of October 13, 1993, and
confirmed as of April 1, 1999, by and among Corporate Express CallCenter
Services, Inc., as Grantor, Jon P. Sherwell and W. Edward Townsend, as Trustees
and The First National Bank of Maryland, as Beneficiary, and recorded in the
real property records of Wicomico County, Maryland.
2. A grant of up to $800,000 in aggregate principal amount extended by The
Commonwealth of Pennsylvania Department of Community and Economic Development to
Corporate Express CallCenter Services, Inc. on May 29, 1997 pursuant to that
certain Opportunity Grant Program Contract, as the same has been amended,
renewed, modified or supplemented to the Effective Date.
3. A grant of up to $800,000 in aggregate principal amount extended by the
Wicomico County Council, a political subdivision of the State of Maryland to
Corporate Express CallCenter Services, Inc. pursuant to that certain Small
Cities Community Development Block Grant Program Grant Agreement by and between
the Maryland Department of Housing and Community Development and the Wicomico
County Council, and secured by a first and second lien deed of trust on the
property located at Winter Place Farms on Maryland Route 346 in Salisbury,
Wicomico County, Maryland, as the same have been amended, renewed, modified or
supplemented to the Effective Date.
Schedule I - Page 4
<PAGE>
o The following shall constitute "Existing Indebtedness" provided that the
acquisitions is actually closed by United Stationers Supply Co. after the
Effective Date and such note is cancelled at the time of such closing:
1. Indebtedness of United Stationers Supply Co. to Corporate Express, Inc. in
aggregate principal amount of $11,305,866.12.
Part B - Liens Securing Indebtedness Remaining Outstanding
United Stationers Inc. and United Stationers Supply Co.:
The UCC financing statements attached hereto with respect to purchase
money and/or lease obligations:
Lagasse Bros., Inc.:
The UCC financing statements attached hereto with respect to purchase
money and/or lease obligations.
Azerty Incorporated:
The UCC financing statements attached hereto with respect to purchase
money and/or lease obligations.
Miscellaneous:
Liens securing the Indebtedness referred to under the heading of
"Miscellaneous" on Schedule I, Part A.
Schedule I - Page 5
<PAGE>
LETTERS OF CREDIT CHART
(As of 5/31/2000)
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------
LC NO. ISSUER APPLICANT ISSUE DATE EXPIRY BENEFICIARY OUTSTANDING BACKSTOP (B)
DATE BALANCE OUTSTANDING
(O)
REPLACE (R)
-------------------------------------------------------------------------------------------------------------------
SANWA/STATE STREET
<S> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------
1. VARIOUS State Street USSC/UWL See List See List See List $1,011,461.43 O
-------------------------------------------------------------------------------------------------------------------
2. 663/470/003853 Sanwa USSC 07/07/97 07/07/00 PNC $8,120,000.00 O
(Anne Arundel
Co.,
MD IRB)
-------------------------------------------------------------------------------------------------------------------
3. 663/470/003325 Sanwa USSC Original 12/31/00 American $5,100,000 O
(Worker's 11/01/94 Motorists
Compensation Insurance
& Auto Last Company, et al.
Liability) Amendment
2/8/00
-------------------------------------------------------------------------------------------------------------------
<CAPTION>
CHASE
<S> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------
1. PG754785 CHASE USSC 03/30/95 1/2/01 PNC $7,684,932.00 B
(Gwinnett
Co., GA IRB)
-------------------------------------------------------------------------------------------------------------------
2. PG754786 CHASE USSC 03/30/95 12/27/03 PNC $6,960,000.00 B
(Twinsburg,
OH IRB)
-------------------------------------------------------------------------------------------------------------------
3. PG754788 CHASE USSC 03/30/95 12/01/03 PNC $7,612,500.00 O
(City of Des
Plaines, IL
IRB)
-------------------------------------------------------------------------------------------------------------------
4. PG754789 CHASE USSC 03/30/95 03/31/01 AMERICAN NATL $13,149,691.19 O
(Employee
Benefit Trust)
-------------------------------------------------------------------------------------------------------------------
</TABLE>
Schedule I - Page 6
<PAGE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------
LC NO. ISSUER APPLICANT ISSUE DATE EXPIRY BENEFICIARY OUTSTANDING BACKSTOP (B)
DATE BALANCE OUTSTANDING
(O)
REPLACE (R)
-------------------------------------------------------------------------------------------------------------------
PNC
<S> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------
1. A-301673 PNC USSC 12/14/90 01/02/01 PNC $ 7,684,932.00 O
(Gwinnett
Co., GA IRB)
-------------------------------------------------------------------------------------------------------------------
2. A-301404 PNC USSC 12/13/86 12/27/04 Bank of New 6,960,000.00 O
(Twinsburg, York
OH IRB)
-------------------------------------------------------------------------------------------------------------------
</TABLE>
LEGEND:
PNC = PNC Bank, National Association
Sanwa = The Sanwa Bank, Limited Chicago Branch
USSC = United Stationers Supply Co.
UWL = United Worldwide Limited
State Street = State Street Bank
Schedule I - Page 7
<PAGE>
STATE STREET BANK
LETTERS OF CREDIT OUTSTANDING
AS OF MAY 31, 2000
<TABLE>
<CAPTION>
OPEN DATE BANK REF BENEFICIARY EXPIRY DATE OUTSTANDING AMT
--------- -------- ----------- ----------- ---------------
<S> <C> <C> <C> <C>
02-Mar-00 ILC-81469/HKG MON AMI CO. LTD. 22-May-00 $ 6,000.00
24-Mar-00 ILC-81473/HKG LIANG HAH HENG INTL RUBBER CO LTD. 25-Jun-00 $ 52,217.00
24-Mar-00 ILC-80245/TPE BRAND STAR CORPORATION 30-Jun-00 $ 51.50
31-Mar-00 ILC-81474/HKG MON AMI CO. LTD. 01-Jul-00 $ 36,748.80
31-Mar-00 ILC-80249/TPE LUCKYTOWN HOME PRODUCT INC. 01-Jul-00 $ 313.82
28-Apr-00 ILC-81476/HKG ZHEJIANG LIGHT INDUSTRIAL PRODUCTS 09-Jul-00 $ 34,206.84
28-Apr-00 ILC-81475/HKG ZHEJIANG LIGHT INDUSTRIAL PRODUCTS 14-Jul-00 $ 91,060.08
02-May-00 ILC-81477/HKG LIANG HAH HENG INTL RUBBER CO LTD. 25-Jul-00 $ 34,276.80
29-Apr-00 ILC-80254/TPE CAIMON ENTERPRISE CO. LTD. 23-Jul-00 $ 24,159.45
28-Apr-00 ILC-80252/TPE SUNYOUNG HARDWARE CORP. 28-Jul-00 $ 22,062.50
29-Apr-00 ILC-80255/TPE DIRECT LEADER LTD. 07-Jul-00 $ 44,316.00
29-Apr-00 ILC-80256/TPE BEAUTONE CO. LTD. 21-Jul-00 $ 4,554.00
29-Apr-00 ILC-80257/TPE MCAIDE ENTERPRISE CO. LTD. 21-Jul-00 $ 10,506.24
29-Apr-00 ILC-80259/TPE CAIMON ENTERPRISE CO. LTD. 28-Jul-00 $ 334,400.24
03-May-00 ILC-80258/TPE PRO ETON (TAICHUNG) CORPORATION 21-Jul-00 $ 6,110.09
18-May-00 ILC-81478/HKG MON AMI CO. LTD. 26-Aug-00 $ 26,052.48
18-May-00 ILC-81479/HKG LIANG HAH HENG INTL RUBBER CO LTD. 16-Aug-00 $ 19,094.00
</TABLE>
Schedule I - Page 8
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18-May-00 ILC-80262/TPE TINEX INTERNATIONAL CORP. 18-Aug-00 $ 50,002.50
18-May-00 ILC-80263/TPE ABEL INDUSTRIES HONG KONG CO. LTD. 10-Aug-00 $ 31,255.20
18-May-00 ILC-80264/TPE DIRECT LEADER LTD. 01-Sept-00 $ 20,449.00
18-May-00 ILC-80265/TPE BRAND STAR CORPORATION 18-Aug-00 $ 18,000.00
$ 867,836.54
<CAPTION>
OUTWARD COLLECTION
<S> <C> <C> <C>
13-Apr-00 OBC-157551 19-Jun-00 $ 10,853.50
27-Apr-00 OBC-157973 17-Jul-00 $ 25,014.00
15-May-00 OBC-158469 18-Jul-00 $ 10,169.25
17-May-00 OBC-158559 03-Aug-00 $ 25,014.00
29-May-00 OBC-159003 19-Jun-00 $ 12,196.80
29-May-00 OBC-159004 19-Jun-00 $ 8,360.34
$ 91,407.89
<CAPTION>
IMPORT BILLS
<S> <C> <C> <C>
29-May-00 1B-84678 19-Jun-00 $ 52,217.00
TOTAL OUTSTANDINGS $1,011,461.43
</TABLE>
Schedule I - Page 9
<PAGE>
SCHEDULE II
ENVIRONMENTAL MATTERS
United Stationers Inc. and United Stationers Supply Co.:
The Company under state direction has investigated the presence of
petroleum contamination at its facility in Edison, N.J. While the Company is not
responsible for the contamination, i.e., did not cause it, it could be required
to undertake certain corrective action to minimize the adverse effects.
None of the facilities owned or operated by Guarantor or its Subsidiaries
is a treatment, storage or disposal facility under the Resource Conservation and
Recovery Act ("RCRA"). Several of the facilities, however, generate hazardous
wastes, which, although not prompting permitting obligations, requires the
registration and procurement of an EPA identification number.
Many of the facilities currently and historically owned, operated or
leased by the Company or its Subsidiaries contain asbestos-containing building
materials ("ACM"), e.g., floor tiles and ceiling materials. In fact, many of the
structures located on real property owned, operated or leased by the Company or
its Subsidiaries were constructed prior to 1981. Recent revisions to regulations
issued by the Occupational Safety and Health Administration ("OSHA") (6/30/95)
require that all thermal system insulation, surfacing materials, and resilient
flooring materials installed prior to 1981 be considered Presumed
Asbestos-Containing Materials ("PACM") and treated accordingly. In order to
rebut the designation as PACM, OSHA requires that these materials be surveyed,
sampled and assessed in accordance with 40 CFR 763 (Asbestos Hazard Emergency
Response Act - AHERA). The Company has not undertaken the sampling necessary to
rebut the presumption, but believes that these materials are manageable and that
the existence of ACM or PACM at any individual facility is not reasonably likely
to give rise to environmental liabilities in excess of $10,000 unless for some
reason e.g., planned renovation or demolition, the ACM had to be removed. For
specific locations that may contain ACM or presumed ACM, the Company
incorporates by reference the asbestos-related information contained in
Environmental Reports listed on Attachment A as well as the fact that PACM
exists in all buildings constructed prior to 1981.
It is possible that some of the electrical equipment located either in the
Company's facilities or on real estate owned or leased by the Company or its
subsidiaries currently contain or historically contained PCB-containing oils.
For the most part, the electrical equipment is owned by the local utility
company in the area. The Company does not believe that the current or historic
presence of PCBs at any individual facility is reasonably likely to give rise to
environmental liabilities in excess of $10,000. The Company incorporates by
reference those portions of the Environmental Reports on
Schedule II - Page 1
<PAGE>
Attachment A that identify the facilities that have or may have PCB-containing
equipment.
There are underground storage tanks ("USTs") located at, on or under some
of the real property owned, operated, or leased by the Company and its
Subsidiaries, and there previously were some USTs located at the Company's
facilities, which have been removed or closed in place. The Company is not aware
of any current leaks or spills from any individual UST that is reasonably likely
to give rise to an environmental claim in excess of $10,000. To the extent any
of the USTs need to be closed, the cost of closure could exceed $10,000. The
Company incorporates by reference those portions of the Environmental Reports on
Attachment A that identify the facilities that have or previously had USTs.
Lagasse Bros., Inc.:
NONE
Azerty Incorporated:
NONE
The Other People Company:
NONE
Schedule II - Page 2
<PAGE>
ENVIRONMENTAL SURVEYS
<TABLE>
<CAPTION>
I. UNITED STATIONERS SUPPLY CO.
===========================================================================================
Date of
Property How Held Survey Type of Survey
===========================================================================================
<S> <C> <C> <C>
2001 Rand Road Lease n/a No Environmental Report
Des Plaines, IL 60016 conducted. Landlord
acknowledged office space
contain asbestos.
-------------------------------------------------------------------------------------------
Building D-3 SW corner of 47th and Lease 5/18/98 PAH sampling report by
Florence Street Dames & Moore
Denver, CO 80239
6/15/93 Environmental Site
Assessment by Camp Dresser
& McKee, Inc.
2/3/98 Environmental Site
Assessment by Camp Dresser
& McKee, Inc.
-------------------------------------------------------------------------------------------
3030 Orange Grove Road Leased 01/04/93 Phase I Environmental
North Highlands, California Assessment
-------------------------------------------------------------------------------------------
18910-60 San Jose Avenue Leased 02/16/95 Final Report Phase I
City of Industry, California Environmental Site
Assessment
-------------------------------------------------------------------------------------------
1630 Westbelt Drive Leased 12/02/91 Report of Phase I
Columbus, Ohio Environmental Site
Assessment and Asbestos
Survey of Limited Scope
-------------------------------------------------------------------------------------------
501 Raritan Way Owned 12/02/91 Report of Phase I
Denver, Colorado Environmental Site
Assessment and Asbestos
Survey of Limited Scope
-------------------------------------------------------------------------------------------
5400 West 12th Street Owned with 12/02/91 Report of Phase I
Jacksonville, Florida a partial Environmental Site
sublet to Assessment and Asbestos
a third Survey of Limited Scope
party
===========================================================================================
</TABLE>
Schedule II - Page 3
<PAGE>
<TABLE>
<CAPTION>
===========================================================================================
Date of
Property How Held Survey Type of Survey
===========================================================================================
<S> <C> <C> <C>
3402 Queens Palm Drive Owned 12/02/91 Report of Phase I
Tampa, Florida Environmental Site
Assessment and Asbestos
Survey of Limited Scope
07/16/93 Report of Results of Phase
II Environmental Assessment
11/23/93 Report of Results of
Battery Wastewater
Assessment
-------------------------------------------------------------------------------------------
7509 Boone Avenue, North Owned 12/02/91 Report of Phase I
Brooklyn Park, Minnesota Environmental Site
Assessment and Asbestos
Survey of Limited Scope
01/17/95 Report of Neutralization
Sump Sampling and Wash
Basin Residue Sampling
-------------------------------------------------------------------------------------------
9755 International Boulevard Owned 11/09/91 Environmental Site
Cincinnati, Ohio Assessment
01/19/95 Report of Wastewater
Sampling
-------------------------------------------------------------------------------------------
8711 West Port Avenue Owned 12/02/91 Report of Phase I
Milwaukee, Wisconsin Environmental Site
Assessment and Asbestos
Survey of Limited Scope
01/17/95 Report of Soil Sampling
-------------------------------------------------------------------------------------------
5345 West 81st Street Owned 11/26/91 Report of Phase I
Indianapolis, Indiana Environmental Site
Assessment and Asbestos
Survey of Limited Scope
01/17/95 UST Records Review and
Report of Phase II
Environmental Site
Assessment
-------------------------------------------------------------------------------------------
Commerce Park III Owned 12/02/91 Report of Phase I
1400 Westinghouse Boulevard Environmental Site
Charlotte, North Carolina Assessment and Asbestos
Survey of Limited Scope
===========================================================================================
</TABLE>
Schedule II - Page 4
<PAGE>
<TABLE>
<CAPTION>
===========================================================================================
Date of
Property How Held Survey Type of Survey
===========================================================================================
<S> <C> <C> <C>
II. LAGASSE BROS., INC.
===========================================================================================
1525 Kuebel Street Lease 10/23/96 Environmental Report
Harahan, LA 70123
01/18/95 Report of Preliminary
Ground-Water and Soil
Assessment Commerce Park
III
1400 Westinghouse Boulevard
Charlotte, North Carolina
Owned
===========================================================================================
</TABLE>
There was also delivered a copy of the Operations and Maintenance Program
for Asbestos-Containing Materials in Associated Stationers Distribution
Warehouses prepared by Law Engineering, Inc. dated November 23, 1993.
Schedule II - Page 5
<PAGE>
UNITED REPORTS PREPARED BY LAW
ENGINEERING AND ENVIRONMENTAL SERVICES
(Previously delivered to lender in earlier transaction)
1. UNITED STATIONERS SUPPLY/TEMPE, AZ
2. UNITED STATIONERS SUPPLY/INDUSTRY, CA
3. UNITED STATIONERS SUPPLY/ANTELOPE, SACRAMENTO CO., CA
4. UNITED STATIONERS SUPPLY/DENVER, CO
5. UNITED STATIONERS SUPPLY/FORT LAUDERDALE, FL
6. UNITED STATIONERS SUPPLY/NORCROSS, GA
7. UNITED STATIONERS SUPPLY/HARAHAN, LA
8. UNITED STATIONERS SUPPLY/HANOVER, MD
9. UNITED STATIONERS SUPPLY/WOBURN, MA
10. UNITED STATIONERS SUPPLY/LIVONIA, MI
11. UNITED STATIONERS SUPPLY/EAGAN, MN
12. UNITED STATIONERS SUPPLY/NORTH KANSAS CITY, MO
13. UNITED STATIONERS SUPPLY/GREENVILLE, IL
14. UNITED STATIONERS SUPPLY/COXSACKIE, NY
15. UNITED STATIONERS SUPPLY/EDISON, NJ
16. UNITED STATIONERS SUPPLY/CHARLOTTE, NC
17. UNITED STATIONERS SUPPLY/SPRINDALE, OH
18. UNITED STATIONERS SUPPLY/TWINSBURG, OH
19. UNITED STATIONERS SUPPLY/TULSA, OK
20. UNITED STATIONERS SUPPLY/PORTLAND, OR
21. UNITED STATIONERS SUPPLY/PENNSAUKEN, NJ
Schedule II - Page 6
<PAGE>
22. UNITED STATIONERS SUPPLY/MEMPHIS, TN
23. UNITED STATIONERS SUPPLY/NASHVILLE, TN
24. UNITED STATIONERS SUPPLY/DALLAS, TX
25. UNITED STATIONERS SUPPLY/HOUSTON, TX
26. UNITED STATIONERS SUPPLY/LUBBOCK, TX
27. UNITED STATIONERS SUPPLY/SAN ANTONIO, TX
28. UNITED STATIONERS SUPPLY/SALT LAKE CITY, UT
29. UNITED STATIONERS SUPPLY/TUKWILA, WA
30. UNITED STATIONERS SUPPLY/MOCKINGBIRD LANE, DALLAS, TX
31. UNITED STATIONERS SUPPLY/JESSUP, MD
32. UNITED STATIONERS SUPPLY/CITY OF INDUSTRY
Schedule II - Page 7
<PAGE>
AZERTY ACQUISITION REPORTS
1. LAW Engineering and Environmental Services ("LAW"), "Report of Phase I
Environmental Site Assessment, Azerty de Mexico, dated Jan. 27, 1998;
2. LAW, Report of Phase I Environmental site Assessment, Azerty Incorporated, 13
Centre Dr., Orchard Park, NY," dated March 1998;
3. LAW, "Report of Phase I Environmental Site Assessment, AP Support Services,
287 Commerce Drive, Amherst, NY," dated March 1998;
4. LAW, "Report of Phase I Environmental Site Assessment, Positive ID Wholesale,
1000 Young Street, Tonawanda, NY," dated March 1998;
5. LAW, "Report of Phase I Environmental Site Assessment, Azerty Inc., 7918 West
Doe Avenue, Suite A, Visalia, CA," dated Feb. 11, 1998;
6. LAW, "Report of Phase I Environmental Site Assessment, Azerty Inc., 5511
Distribution Drive, Ft. Wayne, IN," dated March 2, 1998; and
7. Atlanta Testing and Engineering, "Phase I Environmental Assessment Update,
Dolphin Mall Site, Sweetwater, Florida," dated April 24, 1997.
Schedule II - Page 8
<PAGE>
SCHEDULE III
SUBSIDIARIES AND INVESTMENTS
Part A-Subsidiaries
o United Stationers Supply Co.
o United Stationers Hong Kong Limited
o United Worldwide Limited
o Lagasse Bros., Inc.
o Azerty Incorporated
o Azerty de Mexico, S.A. de C.V.
o USS Receivables Company, Ltd.
o The Order People Company
Part B-Investments
United Stationers Inc.:
o 890,000 authorized shares of United Stationers Supply Co.
United Stationers Supply Co.:
o Investment in The Order People Company (TOPCO) in May 2000. TOPCO is not a
guarantor. Capital investment to date of $1,000.
o Investment in Azerty Incorporated of all of the issued and outstanding
stock thereof.
o Investment in Lagasse Bros., Inc. of all the issued and outstanding stock
thereof.
o Investment in Azerty de Mexico, S.A. de C.V., of [99]% of the ownership
interest thereof.
o Investment in USS Receivables Company, Ltd. of all of the issued and
outstanding stock thereof.
o Investment in United Worldwide Limited of all of the issued and
outstanding stock thereof.
o Investment in United Stationers Hong Kong Limited of all of the issued and
outstanding equity interests thereof.
Schedule III - Page 1
<PAGE>
o Received five year promissory note for $8,600,000 principal amount in
settlement of a defaulted trade receivable for Best Buy, Inc. in 1999. The
Company receives $1,060,000 semi-annually for principal and interest
payments.
Lagasse Bros. Inc.:
NONE
Azerty Incorporated:
1% of the capital stock of Azerty de Mexico, S.A. de C.V.
Schedule III - Page 2
<PAGE>
II. REAL PROPERTY I
United Stationers Inc.
NONE
United Stationers Supply Co.
Arizona
Leasehold
o Tempe - 1013 West Alameda Drive
o Tempe - 2910 S. Hardy, Suite 101
California
Fee Owned
o City of Industry (Los Angeles area) - 918 South Stimson Avenue
Leasehold
o City of Industry (Los Angeles area) - 18385 San Jose Avenue
o North Highland - 3030 Orange Grove
o Sacramento - 4291 Pell Drive
o Sacramento - 5440 Stationers Way
Colorado
Fee Owned
o Denver - 501 Raritan Way
Leasehold
o Building D-3, SW Corner of 47th and Florence Street (Commencement
Date of 2/1/01)
o Denver - 2500 West 5th Street
o Denver - 2465 W. 4th Avenue
Connecticut
Leasehold
o North Branford - 104-5 Branford
Florida
Fee Owned
o Jacksonville - 5400 West 12th Street
Schedule IV - Page 8
<PAGE>
o Tampa - 3402 Queen Palm Drive
Leasehold
o Ft. Lauderdale - 3365 Enterprise Avenue
Georgia
Fee Owned
o Norcross (Atlanta area) - 6448 Best Friend Road
Illinois
Fee Owned
o Des Plaines - 2200 East Golf Road
o Greenville (St. Louis area) - 2000 Wolf Business Park
Leasehold
o Bloomingdale - 344 Glenwood Drive #101
o Carol Stream - 898 Carol Court
o Carol Stream - 801 Kimberly Drive
o Des Plaines - 2001 Rand Road
o Mount Prospect - 1661 Feehanville Drive
Indiana
Fee Owned
o Indianapolis - 5345 West 81st Street
Louisiana
Leasehold
o Lafayette - 223 I.B. Street
o Harahan - 1000 Edwards Avenue
o New Orleans - 300 Plauche Street and Bevin Street
Maryland
Fee Owned
o Hanover (Baltimore area) - 7441 Candlewood Road
Leasehold
o Elkridge - 7090 Troy Hill Drive
o Hanover (Baltimore area) - 7465 Candlewood Road
o Hanover - 7445 New Ridge Road, Suites R-V
Schedule IV - Page 9
<PAGE>
Massachusetts
Fee Owned
o Woburn (Boston area) - 415 Wildwood Avenue
Leasehold
o Haverhill - 183 Ferry Road
Michigan
Fee Owned
o Livonia (Detroit area) - 32432 Capitol Drive
Minnesota
Fee Owned
o Brooklyn Park (St. Paul area) - 7509 Boone Avenue
o Eagan (Minneapolis area) - 1720 Alexander Road
Missouri
Leasehold
o Kansas City - 1606 Linn Street
Montana
Leasehold
o Butte - 105 N. Parkmont
New Jersey
Fee Owned
o Edison (New York area) - 77 Executive Avenue
o Pennsauken (Philadelphia area) - 9009 Pennsauken Highway
Leasehold
o Edison - 260 Meadow Road
o Edison - 50 Saw Mill Pond Road
o Pennsauken - 9020 Pennsauken Highway
New York
Fee Owned
o Coxsackie (Albany area) - Route 9W and Wolf Road
Schedule IV - Page 10
<PAGE>
North Carolina
Fee Owned
o Charlotte - 1400 Westinghouse Blvd., Commerce Park III
Leasehold
o Charlotte - 10800-Z S. Commerce Blvd.
o Charlotte - 9347 Ducks Lane
Ohio
Fee Owned
o Sharonville (Cincinnati area) - 9775 International Drive
o Twinsburg (Cleveland area) - 2100 Highland Road
Leasehold
o Columbus - 1634 Westbelt Drive
o Twinsburg - 2477 Edison Blvd.
Oklahoma
Fee Owned
o Tulsa - 1870 North 109th East Avenue
Leasehold
o Tulsa - 11525 East Pine Street
Oregon
Leasehold
o Portland - 4409 S.E. 24th Street
o Milwaukie - 2750 S.E. Mailwell Dr., Suite B
Pennsylvania
Leasehold
o Warrendale (Pittsburgh area) - 760 Commonwealth Drive
Tennessee
Leasehold
o Memphis - 2843 Harbor Avenue
o Memphis - 5300 Hickory Hill Road, Suite 105
o Nashville - 455 Industrial Blvd.
Schedule IV - Page 11
<PAGE>
Texas
Fee Owned
o Dallas - 119 Regal Row
Leasehold
o Dallas - 613-21 Mockingbird Lane
o Dallas - 3439 Irving Blvd.
o Houston - 7677 Pinemont Avenue
o Irving - 5425 Faa Boulevard - Valley View Center
o Lubbock - 116 Slaton Road
o San Antonio - 3615 Highpoint Drive
Utah
Leasehold
o Salt Lake City - 1730 West 4625 Street
Virginia
Leasehold
o Charlottesville - 2321 Commonwealth Drive
Washington
Leasehold
o Tukwila - 18351 Cascade Avenue South, Building 255
o Tukwila - 18300 Southcenter Parkway
Wisconsin
Fee Owned
o Milwaukee - 8711 West Point Avenue
Leasehold
o Milwaukee - 7023 W. Parkland Court
Canada
Leasehold
Schedule IV - Page 12
<PAGE>
o 60 Haist Avenue, Unit B, City of Vaughn, Woodbridge, Ontario L4L 5V4
Hong Kong
Leasehold
o 81-85 Lockhart Road (22nd Floor) - Wanchai, Hong Kong
Offsite Storage of Books and Records
o The File Roomm 425 Chase Ave.
Elk Grove Village, Illinois 60007
[Cook County]
o Federal Record Storage Co.
779 Church Rd.
Elmhurst, IL 60126
Lagasse Bros., Inc.
Arizona
Leasehold
o Phoenix - 1002 South 63rd Avenue
California
Leasehold
o Hayward - 2754 W. Winton
o Santa Fe Springs - 13950 Mica Street
Colorado
Leasehold
o Aurora - 19682 E. 34th Drive
Florida
Leasehold
o Dania (Miami area) - 2317 Sterling Road
o Tampa - 1210 N. US Highway 31 (Meadowcreek Distribution Center)
Schedule IV - Page 13
<PAGE>
Georgia
Leasehold
o Atlanta - 5215 Westgate Drive, Suite E
Illinois
o Carol Stream - 230 E. Lies Road
o Glendale Heights - 100 Exchange Blvd.
Indiana
o Indianapolis - 2402 N. Shade Land Ave.
o Indianapolis - 2438 N. Shade Land Ave.
Louisiana
Leasehold
o Harahan (New Orleans area) - 1525 Kuebel Street
o Jefferson Parish - 5505 S. Lambert (subleased to Sears Roebuck)
Maryland
Leasehold
o Harmans - 7447 New Ridge Road, Suite C
Massachusetts
Leasehold
o Sharon - 31 Commercial Street
Michigan
Leasehold
o Detroit - 41775 Ecorse Road - Suite 230
Missouri
Leasehold
o Bridgeton - 13257 Corporate Exchange Drive
New Jersey
Leasehold
o Edison - 60 Brunswick Avenue
Schedule IV - Page 14
<PAGE>
North Carolina
o Charlotte - 2700 Hutchinson McDonald Rd., Suite E
Ohio
o Valley View (Cleveland area) - 6065 Towpath Drive (subleased thru
2/1/00 to Whitmire Distribution)
Texas
o Dallas - 3229 Halifax
o Houston - 6001 West by Northwest
o San Antonio - 4703-4735 Greatland Dr., Bldg. 5
Washington
o Kent - 22118 72nd Avenue, Suite 200
Schedule IV - Page 15
<PAGE>
Azerty Incorporated:
California
Leasehold
o Visalia, 7918 Doe Avenue/Suite A
Florida
Leasehold
o Miami, 11200 N.W. 25th
Indiana
Leasehold
o Fort Wayne, 5511 Distribution Drive
New York
Owned
o Orchard Park (Buffalo) (75% office) 13 Centre Drive
Leasehold
o Amherst, 287 Commerce Drive
o Orchard Park (Office Space) 40 Centre Drive
o Tonawanda, 1000 Young Street, Suite 320
Pennsylvania
Leasehold
o Chambersburg, 23 Kriner Road
Schedule IV - Page 16
<PAGE>
MORTGAGES
United Stationers Inc.
A. Fee Owned
NONE
B. Leasehold
NONE
United Stationers Supply Co.
A. Fee Owned
California
o City of Industry (Los Angeles area) - 918 South Stimson Avenue
Colorado
o Denver - 501 Raritan Way****
Florida
o Jacksonville - 5400 West 12th Street*
o Tampa - 3402 Queen Palm Drive*
Georgia
o Norcross - 6448 Best Friend Road
Illinois
o Des Plaines - 2200 East Golf Road
o Greenville (St. Louis area) - 2000 Wolf Business Park
Indiana
o Indianapolis - 5345 West 81st Street
Maryland
o Hanover (Baltimore area) - 7441 Candlewood Road*
Massachusetts
o Woburn (Boston area) - 415 Wildwood Avenue
----------
[**** This mortgage secures the Tranche A Term Loans and the Tranche B Term
Loans only.]
Schedule IV - Page 17
<PAGE>
Michigan
o Livonia (Detroit area) - 32342 Capitol Drive
Minnesota
o Brooklyn Park (St. Paul area) - 7509 Boone Avenue North*
o Eagan (Minneapolis area) - 1720 Alexander Road*
New Jersey
o Edison - 77 Executive Avenue
o Pennsauken (Philadelphia area) - 9009 Pennsauken Highway
New York
o Coxsackie (Albany area) - Route 9W and Wolf Road*
North Carolina
o Charlotte - 1400 Westinghouse Blvd.
Ohio
o Sharonville (Cincinnati area) - 9775 International Drive
o Twinsburg - 2100 Highland Road
Oklahoma
o Tulsa - 1870 North 109th East Avenue
Texas
o Dallas - 119 Regal Row
Wisconsin
o Milwaukee - 8711 West Point Avenue
B. Leasehold
Arizona
o Tempe - 1005-1017 West Alameda Drive
California
o Sacramento - 5440 Stationers Way
o North Highlands - 3030 Orange Grove
Illinois
o Carol Stream - 898 Carol Stream
Louisiana
o New Orleans - 300 Plauche Street and Bevin Street
Schedule IV - Page 18
<PAGE>
Tennessee
o Memphis - 2843 Harbor Avenue*
Texas
o San Antonio - 3615 Highpoint
Washington
o Tukwila - 18351 Cascade Avenue South, Building 255
Lagasse Bros., Inc.
A. Fee Owned
None
B. Leasehold
Louisiana
o Harahan - 1525 Kuebel Street
Azerty Incorporated:
A. Fee Owned
New York
o Orchard Park - 13 Centre Drive1
B. Leasehold
[NONE]
----------
[1. The facility will be mortgaged post-closing.]
[*This Mortgage secures the Tranche A Term Loans and the Tranche B Term Loans
only.]
Schedule IV - Page 19
<PAGE>
SCHEDULE V
LITIGATION
United Stationers Inc.:
No material litigation.
United Stationers Supply Co.:
No material litigation.
United Stationers Hong Kong Limited:
No material litigation.
United Stationers Worldwide Limited:
No material litigation.
USS Receivables Company:
No material litigation.
Lagasse Bros., Inc.:
No material litigation.
Azerty Incorporated:
No material litigation.
Azerty de Mexico, S.A. de C.V.:
No material litigation.
The Order People Company:
No material litigation.
Schedule V - Page 1
<PAGE>
SCHEDULE VI
TAXES
United Stationers Inc.:
NONE
United Stationers Supply Co. and its Subsidiaries:
o United Stationers Hong Kong Limited, Azerty de Mexico, S.A. de C.V.
and United Worldwide Limited do not join in filing consolidated
returns.
o There was a federal income tax refund controversy pending in federal
district court for the year 1986. The case was dismissed at the
request of both United Stationers and the U.S. Department of
Justice. In return, United Stationers received a settlement payment
of $1,350,827.00.
o There was a federal income tax refund controversy pending with
respect to the 1988 through 1990 taxable years in Federal District
Court. Following a further evaluation of the issues, United
Stationers decided to drop this case.
o During the federal audit of fiscal years ended 8/31/93, 8/31/94 and
3/30/95, the IRS assessed United Stationers $165,166 for failure to
backup withhold on dividends paid to a previous shareholder. United
Stationers and the Bank of Boston (United Stationers' transfer
agent) are appealing the assessment. If United Stationers is
ultimately unsuccessful, the Bank of Boston will indemnify it for
any taxes and interest assessed.
TAX AUDITS
US Federal Income Tax Audits
United Stationers Inc. and Subsidiaries are currently being audited for the
years ended 12/31/96, 12/31/97 and 12/31/98.
US State Income Tax Audits
United Stationers Supply Co is currently under audit or scheduled to be audited
in the following states
Massachusetts 1996 to 1998 Scheduled
Illinois 1997 to 1998 Scheduled
Illinois 1994 to 1996 In Process
Schedule VI - Page 1
<PAGE>
New York City 1992 to 1994 In Process
Lagasse Bros., Inc is currently under audit in the following states:
Texas 1996 to 1998 In Process, no change
anticipated
US State Sales Tax Audits
United Stationers Supply Co. is currently under audit in the following states:
California 1997 to 1999 In Process
(waiver for 1997 until October 31, 2000)
OPEN TAX YEARS
US Federal Income Employment Tax
Tax Open Tax Years Open Tax Years
------------------ --------------
USSC December 31, 1996 December 31, 1992-Backup Withholding Issue Only
December 31, 1997 December 31, 1993 - Backup Withholding Issue Only
December 31, 1998 December 31, 1994-Backup Withholding Issue Only
December 31, 1996
December 31, 1997
December 31, 1998
December 31, 1999
Lagasse October 31, 1996 December 31, 1996
December 31, 1997
December 31, 1998
December 31, 1999
Azerty December 31, 1996 December 31, 1996
December 31, 1997 December 31, 1997
December 31, 1998 December 31, 1998
December 31, 1999
US State Income and Franchise Tax Open Tax Years
In general, state tax returns for calendar years, 1996, 1997 and 1998 are open
for review. The tax payer is in the process of amending returns for years from
8/86 through 3/95 resulting from changes in the federal taxable income with
overall net favorable adjustments.
Schedule VI - Page 2
<PAGE>
Specific waivers are in effect for the following states:
Texas Lagasse 1996, extended to 9/30/00
Illinois United Stationers Inc. and Affiliates 8/94 to 12/95 extended to
8/31/00
Schedule VI - Page 3
