UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period From __________ To __________
Commission file number: 1-13858
BT OFFICE PRODUCTS INTERNATIONAL, INC.
________________________________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 13-3245865
_______________________________________ ________________________________
(State of incorporation or organization) (IRS Employer Identification No.)
2150 E. Lake Cook Road
Buffalo Grove, Illinois 60089-1877
_______________________________________ _______________________________
(Address of principal executive offices) (Zip Code)
(847) 793-7500
__________________________________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO _____
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date:
Shares Outstanding as of
Class of Common Stock August 9, 1996
______________________________________ ______________________________
Common stock, par value $.01 per share 33,404,250
<PAGE>
BT Office Products International, Inc.
Quarterly Report on Form 10-Q
For the Quarter Ended June 30, 1996
Index of Information Included in Report
Page
____
Part I. Financial Information
Item 1. Financial Statements (Unaudited)
Condensed consolidated balance sheets 3
Condensed consolidated statements of operations 4
Condensed consolidated statements of cash flows 5
Notes to condensed consolidated financial statements 6
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations 12
Part II. Other Information 16
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<PAGE>
Part I. Financial Information
<TABLE>
<CAPTION>
BT Office Products International, Inc.
Condensed Consolidated Balance Sheets (Unaudited)
(In thousands)
June 30 December 31
1996 1995
------- -----------
<S> <C> <C>
Assets
Current assets: $ 5,747 $ 7,568
Cash and cash equivalents
Receivables, less allowances of $3,994 in 1996 and
$4,222 in 1995 192,512 179,858
Inventories 93,261 86,639
Other current assets 25,324 21,531
-------- --------
Total current assets 316,844 295,596
Other assets 20,732 19,099
Property, plant and equipment 120,930 106,674
Accumulated depreciation and amortization (47,814) (42,033)
-------- --------
Net property, plant and equipment 73,116 64,641
Intangibles, net of accumulated amortization of
$38,634 in 1996 and $34,005 in 1995 185,712 149,813
-------- --------
Total assets $596,404 $529,149
======== ========
Liabilities and Stockholders' Equity
Current liabilities:
Notes payable $ 23,481 $ 20,176
Accounts payable 84,107 79,130
Other current liabilities 57,934 52,327
-------- --------
Total current liabilities 165,522 151,633
Long-term obligations with affiliates 131,717 83,148
Other long-term obligations 16,010 16,403
Other liabilities 17,781 17,730
Stockholders' equity:
Common stock 334 334
Additional paid-in capital 273,477 273,477
Retained earnings (deficit) (6,803) (14,819)
Cumulative translation adjustments (1,634) 1,243
-------- --------
Total stockholders' equity 265,374 260,235
-------- --------
Total liabilities and stockholders' equity $596,404 $529,149
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE>
<TABLE>
<CAPTION>
BT Office Products International, Inc.
Condensed Consolidated Statements of Operations (Unaudited)
(In thousands, except per share amounts)
Three months ended Six months ended
June 30 June 30
--------- --------
<S> <C> <C> <C> <C>
1996 1995 1996 1995
(as restated) (as restated)
---- ------------- ---- ------------
Net sales $339,057 $275,627 $681,713 $544,827
Costs and expenses:
Costs of products sold 240,298 198,532 485,611 392,040
Selling and administrative 83,194 66,118 164,887 131,162
Depreciation and amortization 3,164 2,574 6,201 5,030
Amortization of intangibles 2,490 2,046 4,857 3,977
-------- -------- ------- --------
329,146 269,270 661,556 532,209
-------- -------- ------- --------
Operating income 9,911 6,357 20,157 12,618
Other income (expense):
Other income 257 273 549 784
Interest expense (1,001) (794) (1,967) (1,633)
Interest expense to affiliates (1,724) (4,679) (3,615) (9,320)
-------- -------- ------- --------
(2,468) (5,200) (5,033) (10,169)
-------- -------- ------- --------
Income before income taxes 7,443 1,157 15,124 2,449
Income tax expense 3,498 742 7,108 1,570
-------- -------- ------- --------
Net income $ 3,945 $ 415 $ 8,016 $ 879
======== ======== ======= ========
Net income per share $ 0.12 $ 0.02 $ 0.24 $ 0.04
======== ======== ======= ========
Weighted-average number of
common and common
equivalent shares 33,859 23,400 33,849 23,400
======== ======== ======= ========
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE>
<TABLE>
<CAPTION>
BT Office Products International, Inc.
Condensed Consolidated Statements of Cash Flows (Unaudited)
(In thousands)
Six months ended June 30
1996 1995
(as restated)
---- --------------
<S> <C> <C>
Operating Activities
Net income $8,016 $ 879
Adjustments to reconcile net income to cash provided by
(used for) operating activities:
Depreciation and amortization 7,026 5,517
Amortization of intangibles 4,857 3,977
Other operating activities 1,220 159
Changes in operating assets and liabilities, net of effects of business
acquisitions:
Receivables 1,028 (10,362)
Inventories (2,749) (6,997)
Other current assets (5,052) (887)
Accounts payable and other current liabilities (4,300) (852)
Income taxes payable 1,402 (1,519)
Due to/from affiliates, net 1,483 721
------ -------
Net cash provided by (used for) operating activities 12,931 (9,364)
Investing activities
Purchases of property, plant and equipment (14,048) (7,001)
Acquisitions of businesses, less cash acquired (42,360) (20,834)
Other investing activities (1,603) (3,797)
------ -------
Net cash used for investing activities (58,011) (31,632)
Financing activities
Net payments of notes payable (4,904) (3,195)
Net payments of long-term obligations (889) (128)
Capital contribution from parent - 118,000
Costs related to initial public offering - (2,129)
Net transactions and advances with affiliates 49,161 (70,234)
------ -------
Net cash provided by financing activities 43,368 42,314
Effect of exchange rate changes on cash and cash equivalents (109) (122)
------ -------
Net increase (decrease) in cash and cash equivalents (1,821) 1,196
Cash and cash equivalents at beginning of period 7,568 4,995
------ -------
Cash and cash equivalents at end of period $5,747 $6,191
====== ======
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE>
BT Office Products International, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited)
1. Formation and Basis of Presentation
BT Office Products International, Inc. was organized in 1984 as BT USA, Inc., a
subsidiary of Buhrmann-Tetterode NV, the predecessor of N.V. Koninklijke KNP BT
("KNP BT"), a Netherlands-based diversified distribution and manufacturing
company.
On June 30, 1995, KNP BT and BT Office Products International, Inc. effected a
series of transactions described below (collectively, the "Corporate
Reorganization") in order to reorganize the legal ownership of various of their
businesses and to recapitalize the ongoing office products distribution
business, which now constitutes the "Company". Prior to the Corporate
Reorganization BT Office Products International, Inc. was a holding company (the
"Holding Company") which operated KNP BT's U.S. office products distribution
business (through its ownership of its U.S. office products companies) as well
as certain other businesses which are unrelated to the U.S. office products
distribution business.
The Corporate Reorganization included among other things: (1) KNP BT's
contribution of the net assets of its European office products businesses and
one U.S. business to the Company, (2) the transfer of the Holding Company's
unrelated businesses to KNP BT, (3) a capital contribution (the "Capital
Contribution") of $118.0 million in the form of an exchange of indebtedness of
the Holding Company under interest bearing advances by KNP BT for shares of
common stock, (4) a stock split which resulted in 23.4 million shares issued and
outstanding, and (5) the execution of various agreements related to income tax
matters, financing arrangements and shared services.
In July 1995, the Company completed the sale of 10 million shares of common
stock, at a price of $11.50 per share, in an initial public offering (the
"Offering"). After the Offering, KNP BT beneficially owns approximately 70% of
the Company's outstanding common stock. The net proceeds received from the
Offering, after underwriting commissions and costs related to the Offering and
the Corporate Reorganization (the "Net Proceeds"), were $98.5 million. Of the
Net Proceeds, the Company used $65.8 million to repay in full non-interest
bearing advances from affiliates of KNP BT made in 1994 and 1995 to finance
several acquisitions. The Company used the remaining Net Proceeds to reduce
outstanding indebtedness under the interest bearing advances from affiliates of
KNP BT made to the Company for working capital and other general corporate
purposes. Upon completion of the Offering, the Company entered into a $200
million long-term, multi-currency credit agreement (the "Antilliana Credit
Agreement") with KNP BT Antilliana NV ("Antilliana"), an affiliate of KNP BT.
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<PAGE>
BT Office Products International, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) -- Continued
1. Formation and Basis of Presentation (Continued)
The accompanying unaudited condensed consolidated financial statements present
information in accordance with generally accepted accounting principles for
interim financial information and applicable rules of Regulation S-X.
Accordingly, they do not include all information or footnotes required by
generally accepted accounting principles for complete financial statements.
Management believes the financial statements include all normal accrual
adjustments necessary for a fair presentation. Operating results for the three
month and six month periods ended June 30, 1996 do not necessarily reflect the
results that may be expected for the full year. For further information, refer
to the consolidated financial statements and notes thereto included in the
Company's Form 10-K for the year ended December 31, 1995.
The pro forma unaudited results of operations for the three month and six month
periods ended June 30, 1995, assuming the Capital Contribution and the Net
Proceeds of the Offering occurred as of January 1, 1995, were as follows (in
thousands, except per share amounts):
Three Months Ended Six Months Ended
June 30, 1995 June 30, 1995
__________________ _________________
Sales $275,627 $544,827
Net income 2,543 4,996
Net income per share 0.08 0.15
Weighted-average number of
common and common
equivalent shares 33,400 33,400
Certain amounts in the 1995 financial statements have been reclassified to
conform to the 1996 financial statement presentation.
2. Restatement of 1995 Previously Reported Unaudited Quarterly Results
In March 1996, the Company discovered certain accounting and financial reporting
irregularities at its New York operating division. The irregularities involved
misstatements in the reporting of gross profit margins and operating expenses
principally in 1995 and 1994, as well as the concealment in the accounting
records of theft of Company assets.
Based on the results of its investigations, the Company determined the impact of
the charges associated with these issues to be a reduction of previously
reported unaudited operating income for 1995 by approximately $7.5 million.
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<PAGE>
BT Office Products International, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) -- Continued
2. Restatement of 1995 Previously Reported Unaudited Quarterly Results
(Continued)
The Company engaged legal counsel to investigate the irregularities and pursue
recoveries, if any, from insurance carriers or others. The investigation, which
has been substantially completed, has uncovered no basis for any further
adjustment to the prior year financial statements.
The effect of the restatement of fiscal 1995 unaudited quarterly results of
operations is as follows (in thousands, except per share amounts):
1995 Previously Reported
__________________________________________________________
First Second Third Fourth
Quarter Quarter Quarter Quarter Total
_______ _______ _______ _______ _____
Sales $269,200 $275,627 $277,661 $309,882 $1,132,370
Costs of products
sold 192,591 197,798 201,074 223,865 815,328
Operating income 7,760 8,216 8,854 11,343 36,173
Income before income
taxes 2,791 3,016 6,764 8,956 21,527
Net income 1,316 1,441 3,694 4,739 11,190
Net income per share .06 .06 .12 .14 .40
1995 Restated
__________________________________________________________
First Second Third Fourth
Quarter Quarter Quarter Quarter Total
_______ _______ _______ _______ _____
Sales $269,200 $275,627 $277,661 $309,882 $1,132,370
Costs of products
sold 193,508 198,532 202,077 224,961 819,078
Operating income 6,261 6,357 6,267 9,788 28,673
Income before income
taxes 1,292 1,157 4,177 7,401 14,027
Net income 464 415 2,097 3,714 6,690
Net income per share .02 .02 .07 .11 .24
-8-
<PAGE>
BT Office Products International, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) -- Continued
3. Business Acquisitions
During the six months ended June 30, 1996, the Company acquired four office
products businesses in the U.S. in purchase transactions for aggregate
consideration of $26.7 million, which included the issuance of $800 thousand of
notes payable.
In the year ended December 31, 1995, the Company acquired five U.S. office
products businesses in the U.S. in purchase transactions for aggregate
consideration of $34.2 million, which included the issuance of $250 thousand of
notes payable.
The pro forma unaudited results of operations for the six month periods ended
June 30, 1996 and 1995, assuming the above-described acquisitions had been
consummated as of January 1, 1995, are as follows (in thousands, except per
share amounts):
Six Months Ended Six Months Ended
June 30, 1996 June 30, 1995
________________ ________________
Sales $686,151 $605,722
Net income 7,947 412
Net income per share 0.23 0.02
Weighted-average number of
common and common equivalent
shares 33,849 23,400
The Company also acquired other smaller office products and furniture businesses
in 1996 and 1995. These acquisitions did not have a significant impact on the
consolidated operating results for the six month periods ended June 30, 1996 or
1995.
4. Inventories
Inventories consist of products held for resale and are carried at the lower of
cost or market using the last in, first out (LIFO) method for U.S. inventories
and the first in, first out (FIFO) method for foreign inventories.
5. Per Share Data
Net income per share is calculated by dividing net income by the
weighted-average number of common shares outstanding, adjusted for dilutive
common share equivalents attributed to outstanding options to purchase common
stock.
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<PAGE>
BT Office Products International, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) -- Continued
6. Contingencies
On May 14, 1996, the Company was served with a summons and complaint in a class
action filed on April 16, 1996 in the United States District Court for the
Southern District of New York. The action, brought under Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, alleges
claims against the Company, KNP BT and certain of its officers in connection
with the financial reporting matters discussed in Note 2. The complaint seeks
damages on behalf of a class consisting of purchasers of the Company's stock
from January 30, 1996 through March 28, 1996. The Company is evaluating the
litigation and intends to vigorously defend the complaint. However, it is not
possible at this time to determine what outcome might result from the
litigation.
The Company is involved in various other legal actions arising in the normal
course of business. Management, after taking into consideration legal counsel's
evaluation of such actions, is of the opinion that the ultimate resolution of
these other matters over and above previously established accruals will not have
a material adverse effect on the financial position, net cash flows or results
of operations of the Company.
7. Long-Term Credit Agreement
On August 2, 1996 the Company entered into a $250 million syndicated bank
Competitive Advance and Revolving Credit Facility Agreement (the "New Credit
Agreement"). As a result, the Company intends to substantially reduce the
commitments available under the $200 million Antilliana Credit Agreement. The
New Credit Agreement will be used to repay existing debt owing to affiliates of
the Company and for working capital needs and general corporate purposes,
including acquisitions. The New Credit Agreement provides for borrowings by the
Company or any subsidiaries of the Company and the obligations under the New
Credit Agreement are guaranteed by the Company and each of its U.S.
subsidiaries.
The New Credit Agreement provides for a five-year, unsecured, non-amortizing,
multi-currency, revolving credit facility. Under the multi-currency arrangement,
term loans in U.S. Dollars, German Marks, British Pounds and Netherlands
Guilders (other currencies are also available) will bear interest based on a
Debt to EBITDA ratio (leverage ratio) grid ranging from .35% to .55% over the
applicable interbank rate as determined therein. The facility also provides for
revolving loans in U.S. Dollars at the prevailing prime rate. There is a
facility fee on the unused portion of the New Credit Agreement, based on a
leverage ratio grid, ranging from .125% to .225%.
-10-
<PAGE>
BT Office Products International, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) -- Continued
7. Long-Term Credit Agreement (Continued)
The New Credit Agreement contains various loan covenants, the most significant
of which are a minimum leverage ratio, a minimum EBITDA less capital
expenditures to interest ratio and a minimum net worth requirement. In addition,
under a change of control clause, an event of default would occur if any person
or group, other than KNP BT or its affiliates, shall own more than 50% of the
voting shares of the Company.
8. Income Taxes
The difference between the effective income tax rate and the U.S. statutory tax
rate is primarily due to the effects of state income taxes and non-deductible
goodwill amortization.
9. Subsequent Acquisition
In July 1996, the Company entered into an agreement to acquire the stock of the
Keller + Roth group of office products distributors in Germany pursuant to which
the Company agreed to pay a purchase price of $13.1 million, subject to
adjustment. The Company is in the process of obtaining audited financial
statements of the acquired company for the fiscal year ended June 30, 1996.
Financial statements and pro forma financial information will be filed pursuant
to Items 2 and 7 of Form 8-K when available.
-11-
<PAGE>
BT Office Products International, Inc.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
Results of Operations
In March 1996, following the preliminary fiscal year 1995 accounting close and
public release of unaudited fourth quarter and fiscal year 1995 operating
results, the Company discovered certain accounting and financial reporting
irregularities at its New York Division. The irregularities involved
misstatements in the reporting of gross profit margins and operating expenses
principally in 1995 and 1994, as well as concealment in the accounting records
of theft of Company assets. As a result of the discovery of these
irregularities, the Company has reduced previously reported unaudited operating
income for 1995 by approximately $7.5 million from $36.2 million to $28.7
million. All prior year amounts, including quarterly results, have been restated
to reflect the changes required as a result of these misstatements. Reference is
made to the Company's Form 10-K for the year ended December 31, 1995 for further
information on the restatement of 1994 operating results and adjustment to
opening retained earnings as of January 1, 1993 for years prior to 1994.
The Company engaged legal counsel to investigate the irregularities and pursue
recoveries, if any, from insurance carriers or others. The investigation, which
has been substantially completed, has uncovered no basis for any further
adjustment to the prior year financial statements.
Net sales increased to $339.1 million in the second quarter of 1996 from $275.6
million in the comparable period last year, an increase of $63.5 million or
23.0%. Net sales increased to $681.7 million in the first six months of 1996
from $544.8 million in the comparable period last year, an increase of $136.9
million or 25.1%.
Net sales in the United States increased to $264.2 million in the second quarter
of 1996 from $198.8 million in the comparable period last year, an increase of
$65.4 million or 32.9%. Net sales in the United States increased to $530.7
million in the first six months of 1996 from $394.1 million in the comparable
period last year, an increase of $136.6 million or 34.7%. The Company's 1996
acquisitions and the incremental impact of its 1995 acquisitions accounted for
$29.3 million and $60.6 million of the increases for the second quarter and the
first six months of 1996, respectively. Increased sales at the Company's
existing operations accounted for $36.1 million, or an internal growth rate of
18.2%, in the second quarter and $76.0 million, or an internal growth rate of
19.3%, for the first six months of 1996. The Company believes that the principal
factors contributing to this internal growth were increased sales to existing
and new accounts and "add-on" acquisitions at nine divisions.
-12-
<PAGE>
BT Office Products International, Inc.
Results of Operations (Continued)
Net sales in Europe decreased to $74.9 million in the second quarter of 1996
from $76.8 million in the comparable period last year, a decrease of $1.9
million or 2.5%. Net sales in Europe increased to $151.0 million in the first
six months of 1996 from $150.7 million in the comparable period last year, an
increase of $0.3 million or 0.2%. Effective July 1, 1995, the personal computer
sales and service operation of Bierbrauer & Nagel GmbH & Co. KG was transferred
to the Information Systems Division of KNP BT at net book value. Removing the
effects of this transferred operation, European sales for the second quarter
would have increased by 2.7%, of which 10.9% would have been attributed to
internal growth, offset by an 8.2% currency depreciation against the U.S.
dollar. European sales for the first six months of 1996 would have increased by
5.9%, of which 10.0% would have been attributed to internal growth, offset by a
4.1% currency depreciation against the U.S. dollar. The Company believes that
the principal factors contributing to this internal growth were increased sales
to existing and new accounts and sales associated with an "add-on" acquisition
in Germany.
Costs of products sold include cost of inventory as well as delivery and
occupancy expenses of distribution facilities. Costs of products sold increased
to $240.3 million in the second quarter of 1996 from $198.5 million in the
comparable period last year, an increase of $41.8 million or 21.1%. Costs of
products sold increased to $485.6 million in the first six months of 1996 from
$392.0 million in the comparable period last year, an increase of $93.6 million
or 23.9%. The Company's 1996 acquisitions and the incremental impact of the
Company's 1995 acquisitions accounted for $21.3 million of the second quarter
increase and $43.6 million of the increase in the first six months of 1996. The
balance of the increase for both the second quarter and the first six months of
1996 was attributable to higher sales levels at existing operations in the U.S.
and Europe.
Gross profit, as a percentage of net sales, was 29.1% in the second quarter of
1996 as compared to 28.0% in the comparable period last year, an increase of
1.1%. Gross profit, as a percentage of net sales, was 28.8% for the first six
months of 1996 as compared to 28.0% in the comparable period last year, an
increase of 0.8%. The increases for the second quarter and the first six months
of 1996 were primarily attributable to improved margin management, higher
margins on paper and related product sales and a lower LIFO charge associated
with inventory cost decreases in the U.S. amounting to 0.2%.
Selling and administrative expenses increased to $83.2 million in the second
quarter of 1996 from $66.1 million in the comparable period last year, an
increase of $17.1 million or 25.9%. Selling and administrative expenses
increased to $164.9 million in the first six months of 1996 from $131.2 million
in the comparable period last year, an increase of $33.7 million or 25.7%. The
Company's 1996 acquisitions and the incremental impact of the Company's 1995
acquisitions accounted for $6.8 million of the second quarter increase and $13.4
million of the increase in the first six months of 1996. The balance of the
increase for the second quarter of $10.3 million and the first six months of
1996 of $20.3 million was attributable to existing divisions.
-13-
<PAGE>
BT Office Products International, Inc.
Results of Operations (Continued)
Operating income increased to $9.9 million in the second quarter of 1996 from
$6.4 million in the comparable period last year, an increase of $3.5 million or
54.7%. Operating income increased to $20.2 million in the first six months of
1996 from $12.6 million in the comparable period last year, an increase of $7.6
million or 60.3%. Operating income in the United States increased to $8.2
million in the second quarter of 1996 from $5.7 million in the comparable period
last year, an increase of $2.5 million or 43.9%. Operating income in the United
States increased to $17.8 million in the first six months of 1996 from $11.1
million in the comparable period last year, an increase of $6.7 million or
60.4%. Operating income in Europe increased to $1.7 million in the second
quarter of 1996 from $0.7 million in the comparable period last year, an
increase of $1.0 million or 142.9%. Operating income in Europe increased to $2.4
million in the first six months of 1996 from $1.5 million in the comparable
period last year, an increase of $0.9 million or 60.0%.
Interest expense to affiliates decreased to $1.7 million in the second quarter
of 1996 from $4.7 million in the comparable period last year. Interest expense
to affiliates decreased to $3.6 million in the first six months of 1996 from
$9.3 million in the comparable period last year. The decrease in affiliated
interest expense was attributable to the effects of the Corporate
Reorganization, the Offering, and the Antilliana Credit Agreement which has
resulted in lower interest rates.
Net income increased to $3.9 million in the second quarter of 1996 from $0.4
million in the comparable period last year. Net income increased to $8.0 million
in the first six months of 1996 from $0.9 million in the comparable period last
year. The increase in net income was due to increased operating income at
existing operations, acquisitions, lower interest costs and a lower effective
income tax rate. The effective income tax rate was 47.0% for the first six
months of 1996 as compared to 64.1% for the comparable period in the prior year.
This decrease is primarily due to the effects of non-deductible goodwill
amortization and other permanent differences against a relatively higher pre-tax
income base in 1996.
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<PAGE>
BT Office Products International, Inc.
Liquidity and Capital Resources
Cash provided by operating activities in the first six months of 1996 was $12.9
million, which included $8.0 million of net income and $11.9 million of non-cash
depreciation and amortization charges. Significant cash requirements in the
first six months of 1996 included $42.4 million related to acquisitions, $14.0
million for capital expenditures and $5.8 million for the net payment of notes
payable and long-term obligations. The Company funded its cash requirements
through operations and $49.2 million of borrowings under the Antilliana Credit
Agreement.
Historically, the Company relied upon capital contributions from KNP BT, cash
from revolving credit facilities with KNP BT and cash flow from operations to
fund working capital and investments in acquisitions. In July 1995, the Company
completed the sale of 10 million shares of common stock in the Offering (see
Note 1). Of the Net Proceeds of $98.5 million, the Company used $65.8 million to
repay in full non-interest bearing advances from affiliates of KNP BT made in
1994 and 1995 to finance several acquisitions. The Company used the remaining
Net Proceeds to reduce outstanding indebtedness under the interest bearing
advances from affiliates of KNP BT made to the Company for working capital and
other general corporate purposes. Upon the completion of the Offering, the
Company also entered into the $200 million Antilliana Credit Agreement to
provide funds for working capital and other general corporate purposes.
On August 2, 1996, the Company entered into the $250 million New Credit
Agreement. The initial borrowing under the New Credit Agreement was used to
repay approximately $130 million of outstanding indebtedness for the Company's
U.S. operations under the Antilliana Credit Agreement. The Company intends to
substantially reduce the commitments available under the Antilliana Credit
Agreement. The New Credit Agreement provides for a five-year, non-amortizing,
unsecured, multi-currency, revolving credit facility (see Note 7 to the
Condensed Consolidated Financial Statements). The new agreement extends the
maturity period three years beyond the Antilliana Credit Agreement and provides
additional debt capacity. The Company believes that internally generated funds
and borrowings under its credit facilities will be sufficient to meet its
presently anticipated cash requirements for acquisitions, capital expenditures
and working capital. However, depending on the development of the Company's
business, the Company's capital needs may change, particularly with respect to
financing future acquisitions.
-15-
<PAGE>
Part II. Other Information
BT Office Products International, Inc.
Item 1. Legal Proceedings
Not applicable.
Item 2. Changes in Securities
Not applicable.
Item 3. Defaults upon Senior Securities
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
The Company's Annual Meeting of Stockholders (the "Annual Meeting"), for which
proxies were solicited pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, was held on June 25, 1996 for the purposes of (1)
electing directors of the Company to serve until the next annual meeting of
stockholders and until their successors are duly elected and qualified and (2)
ratifying the appointment by the Board of Directors of the Company of Coopers &
Lybrand L.L.P. as the Company's independent auditors for the fiscal year ending
December 31, 1996. The nominees for director listed in the proxy statement, each
of whom was elected at the Annual Meeting, received the number of votes for such
election, and had the number of votes for such election withheld, as indicated
below (with each share of the Company's common stock being entitled to one
vote):
Number of Votes Number of Votes
For Withheld
________________ _______________
Frank J. de Wit 32,447,545 66,500
Rudolf A.J. Huyzer 32,447,545 66,500
Rob W.J.M. Bonnier 32,447,545 66,500
Karl M. von der Heyden 32,441,545 72,500
Lorrence T. Kellar 32,447,095 66,950
Frans H.J. Koffrie 32,441,195 72,850
James B. Miller 32,447,545 66,500
-16-
<PAGE>
BT Office Products International, Inc.
Item 4. Submission of Matters to a Vote of Security Holders (continued)
There were 32,508,100 votes for the resolution ratifying the appointment of
Coopers & Lybrand L.L.P. as the Company's independent auditors for the fiscal
year ending December 31, 1996, 2,700 votes against such resolution and 3,245
abstentions.
Item 5. Other Information
Reference is made to Note 7 to the Condensed Consolidated Financial Statements
included in Part I of this report.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit Number Description
10.1 Assignment and Modification Agreement, dated June 26,
1996, among BT Office Products International, Inc.,
KNP BT Antilliana N.V., and KNP BT Finance (USA),
Inc.
10.2 Competitive Advance and Revolving Credit Facility
Agreement, dated as of August 2, 1996 among BT Office
Products International, Inc., the subsidiaries,
guarantors and lenders named therein, The Chase
Manhattan Bank, as Administrative Agent, and ABN AMRO
Bank N.V., as Documentation Agent.
10.3 Agreement of Resignation of Howard L. Brown
27 Financial Data Schedule
(b) Reports on Form 8-K
On May 20, 1996, the Company filed a Current Report on Form 8-K reporting a
change in the Company's independent auditors.
On July 17, 1996, the Company filed a Current Report on Form 8-K reporting the
acquisition of the Keller + Roth group of companies in Germany.
-17-
<PAGE>
BT Office Products International, Inc.
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BT Office Products International, Inc.
/s/John J. McKiernan
_________________________________________________________
John J. McKiernan
Vice President--Finance and Administration
and Chief Financial Officer
(Principal Financial Officer and Duly Authorized Officer)
Date: August 14, 1996
-18-
<PAGE>
INDEX TO EXHIBITS
Page in Sequentially
Exhibit No. Description Numbered Copy
__________ ___________ ____________________
10.1 Assignment and Modification Agreement
10.2 Competitive Advance and Revolving Credit
Facility Agreement
10.3 Agreement of Resignation
27 Financial Data Schedule
-19-
<PAGE>
Exhibit 10.1
ASSIGNMENT AND MODIFICATION AGREEMENT
dated June 26, 1996
This ASSIGNMENT AND MODIFICATION AGREEMENT, dated June 26,
1996, among BT OFFICE PRODUCTS INTERNATIONAL, INC., a Delaware corporation
("BTOPI"), KNP BT ANTILLIANA N.V., a Netherlands Antilles joint stock company
("Antilliana"), and KNP BT FINANCE (USA), INC., a Delaware corporation ("BT
Finance").
W I T N E S S E T H
WHEREAS, BTOPI and Antilliana have entered into the Credit
Agreement dated as of June 15, 1995 (the "Credit Agreement"; capitalized terms
used herein and not otherwise defined having the meanings ascribed thereto in
the Credit Agreement) pursuant to which Antilliana has agreed to make Loans, or
to cause the European Lender to make Loans, to one or more of the Borrowers in
accordance with the terms thereof in an aggregate amount not in excess of
$200,000,000;
WHEREAS, it is proposed that BT Finance will become a party to
the Credit Agreement for the purpose of making the Loans to those Borrowers that
are organized in the United States ("U.S. Borrowers"), in an aggregate amount
not in excess of $155,000,000, with Antilliana continuing to make, or to cause
the European Lender to make, Loans to those Borrowers that are organized in
European countries ("European Borrowers"), in an aggregate amount not in excess
of $45,000,000;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Antilliana hereby sells and assigns to BT Finance, and BT
Finance hereby purchases and assumes from Antilliana, all of Antilliana's rights
in, and all of Antilliana's obligations and commitments in respect of, Loans
(whether or not outstanding on the date hereof) to the U.S. Borrowers. From and
after the date hereof, Antilliana shall be released from any obligation to make
Loans to U.S. Borrowers.
2. The purchase price for the outstanding Loans assigned to
BT Finance pursuant to paragraph 1 hereof, which shall be payable promptly
<PAGE>
following the execution and delivery hereof, shall be the sum of (a) the unpaid
principal amount thereof, (b) interest thereon accrued to but excluding the date
of payment of such purchase price and (c) any and all other amounts due and
unpaid in respect of such Loans as of such date of payment. Upon payment in full
of such purchase price, BT Finance shall be entitled to receive all amounts
payable by the U.S. Borrowers in respect of such Loans, whether principal,
interest, fees or other amounts payable pursuant to the Credit Agreement in
respect of such Loans.
3. From and after the date hereof, the aggregate principal
amount of Loans outstanding at any time shall not exceed, in the case of Loans
to U.S. Borrowers, $155,000,000 and, in the case of Loans to European Borrowers,
$45,000,000.
4. From and after the date hereof, all references in the
Credit Agreement to "Lender" shall mean Antilliana and/or BT Finance, as the
context may require. For purposes of Section 7.08 of the Credit Agreement, the
rights and obligations of BT Finance and the U.S. Borrowers shall be construed
in accordance with and governed by the law of the State of New York (without
giving effect to its choice of law principles). For purposes of Section 7.09 of
the Credit Agreement, any judicial proceeding against a U.S. Borrower of the
type referred to in such Section may also be brought in any court of competent
jurisdiction in New York City, New York and any judicial proceeding against BT
Finance of the type referred to in such Section shall be brought only in a court
located in New York City, New York. Except as modified hereby, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
5. This Agreement shall be construed in accordance with and
governed by the laws of the Netherlands Antilles (without giving effect to its
choice of law principles).
6. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
hereto were upon the same instrument.
7. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized officers as of the date first written
above.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/ John J. McKiernan
______________________________________________
Name: John J. McKiernan
Title: Vice President - Finance and
Administration, Chief Financial
Officer, and Secretary
KNP BT ANTILLIANA N.V.
By:/s/ E.J. Halabi /s/ R.M. van Arendonk
______________________________________________
Name: E.J. Halabi Name: R.M. van Arendonk
Title: Managing Title: Office Manager
Director
KNP BT FINANCE (USA), INC.
By:/s/ Andre W.M. Zwetsloot
______________________________________________
Name: Andre W.M. Zwetsloot
Title: President
-3-
<PAGE>
Exhibit 10.2
US$250,000,000
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of
August 2, 1996
among
BT Office Products International, Inc.
The Subsidiaries Named Herein
The Guarantors Named Herein
The Lenders Named Herein
The Chase Manhattan Bank,
as Administrative Agent,
and
ABN AMRO Bank N.V.,
as Documentation Agent
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.................................................. 1
1.02 Accounting Terms
and Determinations......................................... 26
1.03 Currency Equivalents......................................... 26
ARTICLE II
THE LOANS
SECTION 2.01 Commitments.................................................. 27
2.02 Loans........................................................ 28
2.03 Competitive Bid Procedure.................................... 30
2.04 Standby and Alternate Currency
Borrowing Procedure........................................ 33
2.05 Conversion and Continuation of
Standby Loans.............................................. 34
2.06 Fees......................................................... 36
2.07 Repayment of Loans; Evidence of
Debt....................................................... 37
2.08 Interest on Loans............................................ 38
2.09 Default Interest............................................. 39
2.10 Alternate Rate of Interest................................... 39
2.11 Termination and Reduction of
Commitments................................................ 40
2.12 Prepayment................................................... 41
2.13 Reserve Requirements; Change in
Circumstances.............................................. 42
2.14 Change in Legality........................................... 44
2.15 Indemnity.................................................... 44
2.16 Pro Rata Treatment........................................... 45
2.17 Sharing of Setoffs........................................... 46
2.18 Payments..................................................... 47
2.19 Taxes........................................................ 47
2.20 Duty to Mitigate; Assignment of
Commitments Under Certain
Circumstances.............................................. 51
2.21 Borrowing Subsidiaries....................................... 52
2.22 Terms of Alternate
Currency Facilities........................................ 52
2.23 Currency Fluctuations, etc................................... 54
<PAGE>
Page
----
ARTICLE III
CONDITIONS
SECTION 3.01 Effectiveness................................................ 56
3.02 Borrowings................................................... 57
3.03 Initial Borrowing by Each
Borrowing Subsidiary....................................... 58
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Organization; Powers......................................... 58
4.02 Authorization; Enforceability................................ 59
4.03 Governmental Approvals; No
Conflicts.................................................. 59
4.04 Financial Condition; No Material
Adverse Change............................................. 59
4.05 Properties................................................... 60
4.06 Litigation and Environmental
Matters.................................................... 60
4.07 Compliance with laws and
Agreements................................................. 61
4.08 Not an Investment Company or
Holding Company............................................ 61
4.09 Taxes........................................................ 61
4.10 ERISA........................................................ 61
4.11 Disclosure................................................... 62
4.12 Federal Reserve Regulations.................................. 62
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Financial Statements and Other
Information................................................ 63
5.02 Notices of Material Events................................... 64
5.03 Existence; Conduct of Business............................... 65
5.04 Payment of Obligations....................................... 65
5.05 Maintenance of Properties;
Insurance.................................................. 66
5.06 Books and Records; Inspection
Rights..................................................... 66
5.07 Compliance with Laws......................................... 66
5.08 Use of Proceeds.............................................. 66
5.09 Guarantors................................................... 66
ii
<PAGE>
Page
----
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01 Liens........................................................ 67
6.02 Sale and Leaseback Transactions.............................. 68
6.03 Fundamental Changes.......................................... 68
6.04 Investments, Loans, Advances,
Guarantees and Acquisitions;
Heading Agreements......................................... 69
6.05 Transactions with Affiliates................................. 70
6.06 Restrictive Agreements....................................... 70
6.07 Subsidiary Debt.............................................. 70
6.08 Consolidated Leverage Ratio.................................. 71
6.09 Consolidated Interest Coverage
Ratio...................................................... 71
6.10 Consolidated Net Worth....................................... 71
ARTICLE VII DEFAULTS..................................................... 71
ARTICLE VIII THE ADMINISTRATIVE AGENT..................................... 74
ARTICLE IX GUARANTEE.................................................... 77
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices..................................................... 79
10.02 Waivers; Amendments......................................... 80
10.03 Expenses; Indemnity; Damage Waiver.......................... 81
10.04 Successors and Assigns...................................... 82
10.05 Survival ................................................... 86
10.06 Counterparts; Integration;
Effectiveness............................................. 86
10.07 Severability ............................................... 87
10.08 Right of Setoff............................................. 87
10.09 Governing Law; Jurisdiction;
Consent to Service of Process............................. 87
10.10 Waiver of Jury Trial........................................ 88
10.11 Headings.................................................... 88
10.12 Confidentiality............................................. 88
10.13 Conversion of Currencies.................................... 89
iii
<PAGE>
Page
----
Exhibit A - Administrative Questionnaire
Exhibit B - Assignment and Acceptance
Exhibit C - Borrowing Subsidiary Agreement
Exhibit D - Borrowing Subsidiary Termination
Exhibit E-1 - Competitive Bid Request
Exhibit E-2 - Notice of Competitive Bid Request
Exhibit E-3 - Competitive Bid
Exhibit E-4 - Competitive Bid Accept/Reject Letter
Exhibit E-5 - Standby Borrowing Request
Exhibit F - Opinion of Counsel for the Company
Exhibit G - Alternate Currency Addendum
Schedule 2.01 - Commitments
Schedule II - Committed Currencies
iv
<PAGE>
COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT (this "Agreement") dated as of
August 2, 1996, among BT OFFICE PRODUCTS INTERNATIONAL,
INC., the BORROWING SUBSIDIARIES (as defined herein),
the GUARANTORS (as defined herein), the LENDERS (as
defined herein), THE CHASE MANHATTAN BANK, as
Administrative Agent, and ABN AMRO BANK N.V., as
Documentation Agent.
The Borrowers (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in Article I)
have requested the Lenders to extend credit in order to enable them to borrow on
a standby revolving credit basis on and after the date hereof and at any time
and from time to time prior to the Maturity Date a principal amount not to
exceed $250,000,000. The proceeds of such borrowings are to be used for
repayment of existing debt owing to Affiliates, for working capital and for
general corporate purposes, including acquisitions. The Borrowers have also
requested the Lenders to provide a procedure pursuant to which the Lenders may
be invited to bid on an uncommitted basis on short-term borrowings by the
Borrower. The Lenders are willing to extend such credit and provide such
procedure to the Borrowers on the terms and subject to the conditions herein set
forth.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Standby Borrowing" shall mean a Standby Borrowing
comprised of ABR Loans.
<PAGE>
2
"Administrative Agent" shall mean Chase in its capacity as
administrative agent for the Lenders hereunder, and its successors in such
capacity.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.06(b).
"Administrative Questionnaire" shall mean, with respect to
each Lender, an administrative questionnaire in the form of Exhibit A, submitted
to the Administrative Agent (with a copy to the Company) duly completed by such
Lender.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement Currency" shall have the meaning assigned to such
term in Section 10.13(b).
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternate Currency" shall mean an Eligible Currency that is
not a Committed Currency.
"Alternate Currency Addendum" shall mean an Eligible Currency
addendum among the Company, one or more Borrowers and one or more Alternate
Currency Lenders, substantially in the form of Exhibit G.
"Alternate Currency Agent" shall mean one or more entities
(which may be the Administrative Agent or its local affiliates), satisfactory to
the Administrative Agent, as specified in the applicable Alternate Currency
Addendum.
"Alternate Currency Borrowing" shall mean a Borrowing
comprised of Alternate Currency Loans.
<PAGE>
3
"Alternate Currency Facility Maximum Borrowing Amount" shall
have the meaning assigned to such term in Section 2.22(b).
"Alternate Currency Lender" shall mean any Lender (or any
Affiliate, branch or agency thereof) party to an Alternate Currency Addendum. In
the event any agency or Affiliate of a Lender shall be party to an Alternate
Currency Addendum, such agency or Affiliate shall, to the extent of any
commitment extended and any Loans made by it, have all the rights of such Lender
hereunder; provided, however, that such Lender shall continue to the exclusion
of such agency or Affiliate to have all the voting and consensual rights vested
in it by the terms hereof.
"Alternate Currency Lender Maximum Borrowing Amount" shall
have the meaning assigned to such term in Section 2.22(b).
"Alternate Currency Loan" shall mean any loan denominated in
an Alternate Currency made to a Borrower pursuant to Section 2.01(b) and an
Alternate Currency Addendum. Each Alternate Currency Loan shall be a
Eurocurrency Loan or a Loan bearing interest at such other rate as shall be
specified in the applicable Alternate Currency Addendum.
"Applicable Creditor" shall have the meaning assigned to such
term in Section 10.13(b).
"Applicable Lending Office" shall mean, with respect to each
Lender, such Lender's Domestic Lending Office in the case of an ABR Loan or a
Fixed Rate Loan, such Lender's Eurocurrency Lending Office in the case of a
Eurocurrency Loan (other than a Eurocurrency Alternate Currency Loan) or such
Lender's (or its Affiliate's) branch or agency, as specified by such Lender, in
the case of an Alternate Currency Loan.
"Applicable Margin" shall mean on any date, with respect to
Eurocurrency Standby Loans, the applicable
<PAGE>
4
percentage set forth below based upon the Consolidated Leverage Ratio as set
forth below:
Consolidated Applicable
Leverage Margin
Ratio ------
- -----
Category 1
- ----------
Less than or equal to 2.0 .225%
Category 2
- ----------
Greater than 2.0 but less than or
equal to 3.0 .225%
Category 3
- ----------
Greater than 3.0 .325%
Except as set forth below, the Consolidated Leverage Ratio utilized for purposes
of determining the Applicable Margin shall be that in effect as of the last
Financial Statement Delivery Date. From the date hereof until the initial
delivery of financial statements pursuant to Section 5.04(a) or (b), the
Applicable Margin shall be determined by reference to Category 2. Each change in
the Applicable Margin resulting from a change in the Consolidated Leverage Ratio
shall be effective with respect to all Loans and Commitments outstanding on and
after the date of such change. Notwithstanding the foregoing, at any time when
the Company has failed to deliver the financial statements required by Section
5.04(a) or (b), the Applicable Margin shall be determined by reference to
Category 3.
"Assignee" has the meaning set forth in Section 10.04(b).
"Assignment and Acceptance" shall mean an agreement in the
form of Exhibit B hereto.
"Available Commitment" shall mean, as to any Lender at any
time, an amount equal to such Lender's Commitment at such time minus such
Lender's Standby Credit Exposure at such time.
"Bank Default" has the meaning set forth in Section 2.20(b).
<PAGE>
5
"Bank Proceeding" has the meaning set forth in Section
2.20(b).
"Borrower" shall mean the Company or any Borrowing Subsidiary.
"Borrowing" shall mean a Loan or group of Loans of a single
Type and currency made by the Lenders (or by the applicable Alternate Currency
Lenders or the Lender or Lenders whose Competitive Bids have been accepted
pursuant to Section 2.03, as the case may be) on a single date and as to which
the same Interest Period is in effect.
"Borrowing Subsidiary" shall mean any Subsidiary of the
Company named as such on the signature pages hereto or designated as a Borrowing
Subsidiary by the Company pursuant to Section 2.21.
"Borrowing Subsidiary Agreement" shall mean a Borrowing
Subsidiary Agreement substantially in the form of Exhibit C.
"Borrowing Subsidiary Termination" shall mean a Borrowing
Subsidiary Termination substantially in the form of Exhibit D.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in deposits in the applicable
currency in the London interbank market.
"Calculation Date" shall mean the last Business Day of each
calendar month.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
<PAGE>
6
"Change in Control" shall be deemed to have occurred if any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof), other than any Affiliate of the
Company on the date hereof or any entity controlled by such an Affiliate, shall
own directly or indirectly, beneficially or of record, shares representing more
than 50% of the equity, or more than 50% of the aggregate ordinary voting power,
represented by the issued and outstanding capital stock of the Company.
"Change in Law" shall mean (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof after the date of
this Agreement or (c) compliance by any Lender with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Chase" shall mean The Chase Manhattan Bank.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender hereunder as set forth in Schedule 2.01 under the
heading "Standby Commitment" or in an Assignment and Acceptance delivered by
such Lender under Section 10.04, as such Lender's Commitment may be permanently
terminated or reduced from time to time pursuant to Section 2.11 or pursuant to
one or more assignments under Section 10.04. The Commitment of each Lender shall
automatically and permanently terminate on the Maturity Date if not terminated
earlier pursuant to the terms hereof.
"Committed Currency" shall mean each Eligible Currency listed
on Schedule II, as such Schedule may be amended from time to time.
"Committed Currency Credit Exposure" shall mean, with respect
to any Lender at any time, the aggregate Dollar Equivalent of the principal
amount of all outstanding Standby Committed Currency Loans of such Lender.
<PAGE>
7
"Company" shall mean BT Office Products International, Inc., a
Delaware corporation, and its successors.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the applicable Borrower pursuant to Section 2.03(d) in the
form of Exhibit E-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid
made by a Lender pursuant to Section 2.03(b), (i) in the case of a Eurocurrency
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.03 in the form of Exhibit E-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by the applicable
Borrower under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a loan made pursuant to the
bidding procedure described in Section 2.03. Each Competitive Loan shall be a
Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount of all outstanding
Competitive Loans made by such Lender.
"Consolidated Capital Expenditures" shall mean, for any
period, the sum of the aggregate of all expenditures (whether paid in cash or
other consideration or accrued as a liability) by the Company and its
Subsidiaries on a consolidated basis, during that period that, in conformity
with GAAP, would be included in "purchases of property, plant or equipment" or
comparable items reflected in the consolidated statement of cash flows of the
Borrower and its Subsidiaries for such period.
<PAGE>
8
"Consolidated EBITDA" shall mean, for any period, Consolidated
Net Income for such period, plus, to the extent deducted in computing such
Consolidated Net Income and without duplication, (a) depreciation and
amortization expense, (c) Consolidated Interest Expense, (c) income tax expense
and (d) other non-cash charges, all as determined in accordance with GAAP
consistently applied, minus any non-cash income, if any, attributable to equity
investments in Persons other than the Subsidiaries.
"Consolidated Interest Coverage Ratio" shall mean, at any
date, the ratio of (a) Consolidated EBITDA minus Consolidated Capital
Expenditures for the period of four consecutive fiscal quarters most recently
ended as of such date to (b) Consolidated Interest Expense for such period of
four consecutive fiscal quarters.
"Consolidated Interest Expense" shall mean, for any period,
the gross interest expense of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied.
"Consolidated Leverage Ratio" shall mean, on any date, the
ratio of Consolidated Total Debt at such date to Consolidated EBITDA for the
period of the four consecutive fiscal quarters most recently ended as of such
date, adjusted on a pro forma basis to include the pre-acquisition results of
any Material Acquisitions during such period and to exclude the pre-divestiture
results of any Material Divestitures during such period.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Company and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP consistently applied.
"Consolidated Net Worth" shall mean, at any date, the
consolidated stockholders' equity of the Company and its Subsidiaries, as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date, all Debt
of the Company and its Subsidiaries on such date, determined on a consolidated
basis in accordance with GAAP consistently applied.
<PAGE>
9
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Debt" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all Debt of
others secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Debt secured thereby has been
assumed, (g) all Guarantees by such Person of Debt of others, (h) all Capital
Lease Obligations of such Person, and (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit,
letters of guaranty and bankers' acceptances. The Debt of any Person shall
include the Debt of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Debt provide that such Person is
not liable therefor.
"Default" shall mean any condition or event which constitutes
an Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 4.06(b).
"Dollar Borrowing" shall mean a Borrowing comprised of Dollar
Loans.
<PAGE>
10
"Dollar Equivalent" shall mean, on any date of determination,
with respect to any amount in any Eligible Currency, the equivalent in Dollars
of such amount, determined by the Administrative Agent using the Exchange Rate
with respect to such Eligible Currency then in effect as determined pursuant to
Section 2.23(a).
"Dollar Loan" shall mean any Loan denominated in Dollars.
"Dollars" or "$" shall mean lawful currency of the United
States of America.
"Domestic Borrowing Subsidiary" shall mean any Borrowing
Subsidiary organized under the laws of the United States.
"Domestic Lending Office" shall mean, with respect to any
Lender, the office of such Lender specified as its "Domestic Lending Office" on
Schedule 2.01 or, as to any person who becomes a Lender after the Closing Date,
on the Assignment and Acceptance executed by such person or such other office of
such Lender as such Lender may hereafter designate from time to time as its
"Domestic Lending Office" by notice to the Company and the Administrative Agent.
"Effective Date" shall mean the date this Agreement becomes
effective in accordance with Section 3.01.
"Eligible Currency" shall mean any currency other than Dollars
that is readily available, freely traded and convertible into Dollars in the
London market and as to which an Exchange Rate may be calculated.
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
ground water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum
<PAGE>
11
products, chemicals or industrial, toxic or hazardous substances or wastes or
the clean-up or other remediation thereof.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities),of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder (other than an event
for which the 30-day notice period is waived), with respect to a Plan; (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Company or
<PAGE>
12
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
the Company or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurocurrency Alternate Currency Loan" shall mean any
Alternate Currency Loan bearing interest at a rate determined by reference to
the LIBO Rate in accordance with the provisions of Article II.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Competitive Loan" shall mean any Competitive
Loan bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Lending Office" shall mean, with respect to each
Lender, the branches or Affiliates of such Lender which such Lender has
designated as its "Eurocurrency Lending Office" on Schedule 2.01 or, as to any
person who becomes a Lender after the Closing Date, on the Assignment and
Acceptance executed by such person or such other office of such Lender as such
Lender may hereafter designate from time to time as its "Eurodollar Lending
Office" by notice to the Company and the Administrative Agent.
"Eurocurrency Loan" shall mean any Eurocurrency Competitive
Loan, Eurocurrency Standby Loan or Eurocurrency Alternate Currency Loan.
"Eurocurrency Standby Borrowing" shall mean a Borrowing
comprised of Eurocurrency Standby Loans.
"Eurocurrency Standby Loan" shall mean any Standby Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" has the meaning set forth in Article VII.
"Exchange Rate" shall mean, with respect to any Eligible
Currency on a particular date, the rate at which
<PAGE>
13
such Eligible Currency may be exchanged into Dollars, as set forth on such date
on the Reuters currency page more particularly described in Schedule II, with
respect to a Committed Currency, or in the applicable Alternate Currency
Addendum, with respect to an Alternate Currency. In the event that such rate
does not appear on the applicable Reuters currency page, the Exchange Rate with
respect to such Eligible Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Company or, in the absence of such
agreement, such Exchange Rate shall instead be the Administrative Agent's spot
rate of exchange in the London interbank market or other market where the
Administrative Agent's foreign currency exchange operations in respect of such
Eligible Currency are then being conducted, at or about 10:00 A.M., local time,
on such date for the purchase of Dollars with such Eligible Currency for
delivery two Business Days later; provided, however, that if at the time of any
such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" shall mean, with respect to the
Administrative Agent, any Lender or any other recipient of any payment to be
made by or on account of any obligation of any Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income or its assets by the
jurisdiction under the laws of which it is organized, or the jurisdiction in
which its principal office is located or, in the case of any Lender, in which
its Applicable Lending Office is located or in which it is, other than as a
result of the making of the Loans or the receipt of payments hereunder, subject
to tax in that jurisdiction by reason of doing business in such jurisdiction,
(b) any branch profits or similar tax imposed by the Relevant Jurisdiction and
(c) in the case of a Foreign Lender, any withholding tax imposed on amounts
payable to such Foreign Lender under this Agreement because of its failure or
inability to comply with Section 2.19(e) or otherwise, unless (and to the extent
that) (i) such withholding tax liability arises or is increased by reason of a
Change in Law occurring after such Foreign Lender becomes a Lender under this
Agreement or (ii) such Foreign Lender's assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the Borrower
<PAGE>
14
with respect to such withholding tax liability pursuant to Section 2.19(a).
"Facility Excess" shall have the meaning assigned to such term
in Section 2.23(b).
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Facility Fee Percentage" shall mean on any date the
applicable percentage set forth below based upon the Consolidated Leverage Ratio
as set forth below:
Consolidated Facility
Leverage Fee
Ratio ---
- -----
Category 1
- ----------
Less than or equal to 2.0 .125%
Category 2
- ----------
Greater than 2.0 but less than or
equal to 3.0 .175%
Category 3
- ----------
Greater than 3.0 .225%
Except as set forth below, the Consolidated Leverage Ratio utilized for purposes
of determining the Facility Fee Percentage shall be that in effect as of the
last Financial Statement Delivery Date. From the date hereof until the initial
delivery of financial statements pursuant to Section 5.01(a) or (b) and a
certificate pursuant to Section 5.01(c), the Facility Fee Percentage shall be
determined by reference to Category 2. Each change in the Facility Fee
Percentage resulting from a change in the Consolidated Leverage Ratio shall be
effective with respect to all Loans and Commitments outstanding on and after the
date of such change. Notwithstanding the foregoing, at any time when the Company
has failed to deliver the financial statements required by Section 5.01(a) or
(b) and a certificate pursuant to Section 5.01(c), the Facility Fee Percentage
shall be determined by reference to Category 3.
"Facility Overage" shall mean an amount equal to the excess of
(a) the Total Commitment over (b) the aggregate amount of all Alternate Currency
Facility Maximum Borrowing
<PAGE>
15
Amounts (determined, if applicable, after giving effect to any reduction therein
made pursuant to Section 2.23(a)).
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Facility Fee and the Administrative
Fees.
"Financial Officer" shall mean the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Financial Statement Delivery Date" shall mean the 90th day
following the end of the fourth fiscal quarter, and the 45th day following the
end of each other fiscal quarter, in each fiscal year of the Company.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender making such
Loan in its Competitive Bid.
"Foreign Lender", with respect to any Loan, shall mean any
Lender making such Loan that is organized under the laws of, or otherwise tax
resident in, a jurisdiction other than the Relevant Jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary organized under
the laws of a jurisdiction outside the United States of America or any of its
territories or possessions or any political subdivision thereof.
<PAGE>
16
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any Person (the "guarantor") shall mean
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Debt or other obligation of any other
Person (the "primary obligor") in any manner, whether directly or indirectly,
and including any obligation, direct of indirect, of the guarantor (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security in order to effect the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Debt or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such
Debt or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantor" shall mean (a) each Borrower (other than any
Foreign Subsidiary) and (b) each Subsidiary that has become a Guarantor as
provided in Section 5.09.
"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.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
<PAGE>
17
"Indemnitee" shall have the meaning assigned to such term in
Section 10.03(b).
"Information" shall have the meaning assigned to such term in
Section 10.12.
"Interest Payment Date" shall mean (a) with respect to any
Loan, the last day of each Interest Period applicable to the Borrowing of which
such Loan is a part and, in addition, the date of any prepayment of such Loan or
conversion of such Loan to a Loan of a different Type, (b) in the case of a
Eurocurrency Loan with an Interest Period of more than three months' duration or
a Fixed Rate Loan with an Interest Period of more than 90 days' duration, each
day that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days' duration, as the case may
be, been applicable to such Loan, and (c) with respect to an Alternate Currency
Loan (other than a Eurocurrency Loan), such days as shall be specified in the
applicable Alternate Currency Addendum.
"Interest Period" shall mean (a) as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Maturity
Date and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.05 or repaid or prepaid in
accordance with Section 2.07 or Section 2.12, (c) as to any Fixed Rate
Borrowing, the period commencing on the date of such Borrowing and ending on the
date specified in the Competitive Bids in which the offers to make the Fixed
Rate Loans comprising such Borrowing were extended, which shall not be earlier
than one day after the date of such Borrowing or later than 360 days after the
date of such Borrowing, and (d) as to any Alternate Currency Borrowing, such
periods as shall be specified in the applicable Alternate Currency Addendum;
provided, however, that if any Interest Period
<PAGE>
18
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of Eurocurrency
Loans only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.
"Judgment Currency" shall have the meaning assigned to such
term in Section 10.13(b).
"Lender" shall mean each bank listed on the signature pages
hereof, each Assignee which becomes a Lender pursuant to Section 10.04, and
their respective successors.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the arithmetic average of the
rates that appear on the Reuters Screen LIBO Page as of 11:00 a.m. (London time)
on such date for deposits in Dollars or in the applicable Eligible Currency and
for a maturity comparable to such Interest Period or, in the event no such rates
appear on the Reuters Screen LIBO Page, the arithmetic average of the rates at
which deposits in Dollars or the applicable Eligible Currency approximately
equal in principal amount to such Borrowing and for a maturity comparable to
such Interest Period are offered to the principal London offices of the
Reference Banks in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Company or any Subsidiary
shall be deemed to own subject to a Lien any asset which 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 relating to such
asset.
"Loan" shall mean a Competitive Loan, a Standby Loan or an
Alternate Currency Loan.
"Loan Documents" shall mean this Agreement, each Borrowing
Subsidiary Agreement, each Alternate Currency
<PAGE>
19
Addendum and each amendment, supplement, modification, consent or waiver of, to
or in respect of any of the foregoing.
"Margin" shall mean, as to any Eurocurrency Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Material Acquisitions" shall mean, for any four quarter
period, operating units or entities acquired by the Company and the Subsidiaries
during such period, other than those acquired for consideration not greater than
$5,000,000 for any such operating unit or entity.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the business, assets, operations, prospects or financial condition of
the Company and its Subsidiaries, taken as a whole, (b) material impairment of
the ability of the Company and its Subsidiaries, taken as a whole, to perform
any of the material obligations of the Company or any Subsidiary under any Loan
Document (it being agreed that the material obligations of the Company and the
Subsidiaries will include all payment obligations hereunder), or (c) material
impairment of the rights of or benefits available to the Lenders or the
Administrative Agent under any Loan Document.
"Material Debt" shall mean Debt (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of the Company and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $5,000,000. For
purposes of determining Material Debt, the "principal amount" of the obligations
of the Company or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting
arrangements) that the Company or such Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time.
"Material Divestitures" shall mean, for any four quarter
period, operating units or entities disposed of by the Company and the
Subsidiaries during such period, other
<PAGE>
20
than those disposed of for consideration not greater than $5,000,000 for any
such operating unit or entity.
"Maturity Date" shall mean August 2, 2001.
"Multicurrency Borrowing" shall mean a Borrowing comprised of
Multicurrency Loans.
"Multicurrency Loan" shall mean a loan denominated in an
Eligible Currency.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Notice of Competitive Bid Request" shall mean a notification
made pursuant to Section 2.03 in the form of Exhibit E-2.
"Obligations" shall mean the due and punctual payment of (i)
the principal of and interest on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, and (ii) all other monetary obligations, including Fees, costs,
expenses and indemnities (including, without limitation, the obligations
described in Section 2.19) of the Borrowers to the Lenders under this Agreement
and the other Loan Documents.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution or delivery
of, or otherwise with respect to, this Agreement, other than an Excluded Tax.
"Participant" has the meaning set forth in Section 10.04(e).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
<PAGE>
21
"Permitted Encumbrances" shall mean:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 60 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Company or any
Subsidiary;
provided that "Permitted Encumbrances" shall not include any Lien securing Debt.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and
<PAGE>
22
having, at such date of acquisition, a rating of at least A2 from
Standard & Poor's, a division of The McGraw Hill Companies, or P2 from
Moody's Investors
Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any Lender or any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than
$250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" shall mean an individual, a corporation, a
partnership, a limited liability company, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Rata Percentage" shall mean, with respect to any Lender,
the percentage of the Total Commitment represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Pro Rata Percentages shall be
<PAGE>
23
determined based upon the aggregate Dollar Equivalent of the principal amount of
all Loans outstanding.
"Reference Banks" shall mean Chase and Bank of America.
"Relevant Jurisdiction" shall mean (i) in the case of any Loan
to the Company or any Domestic Borrowing Subsidiary, the United States of
America, and (ii) in the case of any Loan to any other Borrowing Subsidiary, the
jurisdiction imposing (or having the power to impose) withholding tax on
payments by such Borrowing Subsidiary under this Agreement.
"Register" shall have the meaning assigned to such term in
Section 10.04(c).
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System of the United States of America, as in
effect from time to time.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System of the United States of America, as in
effect from time to time.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System of the United States of America, as in
effect from time to time.
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing a majority of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VII or if the Commitments have
otherwise been terminated, Lenders holding Loans representing a majority of the
aggregate Dollar Equivalent of the principal amount of all Loans outstanding.
"Reset Date" shall have the meaning assigned to such term in
Section 1.03(a).
"Reuters Screen LIBO Page" shall mean, in respect of any
currency, the display designated as page "LIBO" for such currency on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO page on
that service for the purpose of displaying London interbank offered rates of
major banks).
<PAGE>
24
"Standby Borrowing" shall mean a Standby Committed Currency
Borrowing or a Standby Dollar Borrowing.
"Standby Borrowing Request" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit E-5.
"Standby Borrowing Request" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit E-5.
"Standby Committed Currency Borrowing" shall mean a Borrowing
consisting of simultaneous Standby Committed Currency Loans from each of the
Lenders then having an Available Commitment.
"Standby Committed Currency Loans" shall mean the revolving
loans made pursuant to Section 2.01(a) that are denominated in Committed
Currencies. Each Standby Committed Currency Loan shall be a Eurocurrency Loan.
"Standby Credit Excess" shall have the meaning assigned to
such term in Section 2.23(a).
"Standby Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount at such time
of all outstanding Standby Dollar Loans of such Lender, (b) the Dollar
Equivalent of the aggregate principal amount of all outstanding Standby
Committed Currency Loans of such Lender and (c) the Dollar Equivalent of the
aggregate principal amount of all outstanding Alternate Currency Loans of such
Lender (and each agency or Affiliate of such Lender acting as an Alternate
Currency Lender).
"Standby Credit Overage" shall mean, with respect to any
Lender, an amount equal to the excess, if any, of (a) such Lender's Commitment
over (b) the aggregate Alternate Currency Lender Maximum Borrowing Amounts of
such Lender with respect to all Alternate Currency Addenda to which such Lender
or any of its Affiliates is a party.
"Standby Dollar Borrowing" shall mean a Borrowing consisting
of simultaneous Standby Dollar Loans from each of the Lenders then having an
Available Commitment.
"Standby Dollar Loans" shall mean the revolving loans made
pursuant to Section 2.01(a) that are denominated
<PAGE>
25
in Dollars. Each Standby Dollar Loan shall be a Eurocurrency Standby Loan or an
ABR Loan.
"Standby Extensions of Credit" shall mean, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount of all Standby
Dollar Loans made by such Lender then outstanding and (b) the Dollar Equivalent
of the aggregate principal amount of all Standby Committed Currency Loans made
by such Lender then outstanding.
"Standby Loans" shall mean Standby Dollar Loans and Standby
Committed Currency Loans.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority, other than Excluded Taxes.
"Total Commitment" shall mean, at any time, the aggregate
Commitments of all the Lenders, as in effect at such time.
"Transactions" means the execution, delivery and performance
by the Borrowers and the Guarantors of this Agreement and any Alternate Currency
Addendum, the borrowing of Loans hereunder and thereunder and the use of the
proceeds of such Loans.
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26
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate, the Alternate Base Rate and the Fixed Rate.
"United States" or "United States of America" shall mean the
United States of America, including the States and the District of Columbia.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP as in effect from time to time; provided that, if the
Company notifies the Administrative Agent that the Company wishes to amend any
covenant in Article VI to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Lenders wish to
amend Article VI for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
SECTION 1.03. Currency Equivalents. (a) Not later than 1:00
p.m., New York City time, on each Calculation Date, the Administrative Agent and
the Alternative Currency Agents, as applicable, shall (i) determine the Exchange
Rate as of such Calculation Date with respect to each Committed Currency and
each Alternate Currency as to which an Alternate Currency Addendum is in effect
and (ii) give notice thereof to the Company and the Lenders. The Exchange Rates
so determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "Reset Date"), shall remain effective
until the next succeeding Reset Date and shall during the period of their
effectiveness be employed in making any computation of currency equivalents
required to be made under this Agreement (other than any computation required
under Section 10.13).
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and on the date of each Borrowing, the
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Administrative Agent shall (i) determine the Dollar Equivalents of each Standby
Committed Currency Loan and Alternate Currency Loan then outstanding (after
giving effect to any Standby Committed Currency Loan or Alternate Currency Loan
made or repaid on such date), and (ii) notify the Company and the Lenders of the
results of such determination.
ARTICLE II
THE LOANS
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, to make Standby Loans,
denominated in Dollars or in any Committed Currency (as the Borrower may elect),
to any Borrower, at any time and from time to time on and after the Effective
Date and until the earlier of the Maturity Date and the termination of the
Commitment of such Lender.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the applicable Alternate
Currency Addendum, each Alternate Currency Lender that is party to an Alternate
Currency Addendum agrees, severally and not jointly, to make Alternate Currency
Loans under such Alternate Currency Addendum to the Borrowers, at any time and
from time to time on and after the later of the Effective Date and the execution
of such Alternate Currency Addendum and until the earlier of the Maturity Date
and the termination of the Commitment (or the commitment under such Alternate
Currency Addendum) of such Alternate Currency Lender.
(c) Notwithstanding anything to the contrary contained in this
Agreement, in no event may any Borrowing be made under this Article II if, after
giving effect thereto (and to any concurrent repayment or prepayment of Loans),
(i) the sum of the aggregate Standby Credit Exposures and the aggregate
Competitive Loan Exposures would exceed the Total Commitment then in effect,
(ii) the Standby Credit Exposure of any Lender would exceed such Lender's
Commitment, (iii) the Dollar Equivalent of the aggregate Alternate Currency
Loans outstanding under any Alternate Currency Addendum would exceed the
applicable Alternate Currency Facility Maximum Borrowing Amount, or (iv) the
Dollar Equivalent of the
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aggregate Alternate Currency Loans of any Lender outstanding under any Alternate
Currency Addendum would exceed the applicable Alternate Currency Lender Maximum
Borrowing Amount.
(d) Within the foregoing limits, the Borrowers may borrow, pay
or prepay and reborrow Standby Loans and Alternate Currency Loans hereunder, on
and after the Effective Date and prior to the Maturity Date, subject to the
terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as
part of a Borrowing consisting of Standby Loans denominated in the same currency
made by the Lenders ratably in accordance with their Available Commitments;
provided, however, that the failure of any Lender to make any Standby Loan shall
not relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Each
Alternate Currency Loan shall be made as part of a Borrowing consisting of
Alternate Currency Loans denominated in the same Alternate Currency and made by
the applicable Alternate Currency Lenders ratably in accordance with the
applicable Alternate Currency Lender Maximum Borrowing Amounts; provided,
however, that the failure of any Alternate Currency Lender to make any Alternate
Currency Loan shall not relieve any other Alternate Currency Lender of its
obligation to lend hereunder (it being understood, however, that no Alternate
Currency Lender shall be responsible for the failure of any other Alternate
Currency Lender to make any Alternate Currency Loan required to be made by such
other Alternate Currency Lender). Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 2.03. The Loans comprising
any Borrowing shall be (i) in the case of Competitive Loans, in an aggregate
principal amount that is an integral multiple of $1,000,000 and not less than
$5,000,000, (ii) in the case of Standby Dollar Loans, in an aggregate principal
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
(or an aggregate principal amount equal to the remaining balance of the
Available Commitments), (iii) in the case of Standby Committed Currency Loans,
in an aggregate principal amount the Dollar Equivalent of which is not less than
$5,000,000 and (iv) in the case of Alternate Currency Loans, in an aggregate
principal amount that complies with the
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requirements set forth in the applicable Alternate Currency Addendum. All
Competitive Loans shall be made in Dollars.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurocurrency Competitive Loans or Fixed Rate Loans; each Standby Dollar
Borrowing shall be comprised entirely of Eurocurrency Standby Loans or ABR
Loans; and each Standby Committed Currency Borrowing shall be comprised entirely
of Eurocurrency Standby Loans, as the applicable Borrower may request pursuant
to Section 2.03 or 2.04, as applicable. Each Lender may at its option make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided, however, that any exercise of such option
shall not affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that no Borrower shall
be entitled to request any Borrowing which, if made, would result in an
aggregate of more than 10 separate Eurocurrency Standby Loans of any Lender
being outstanding at any one time. For purposes of the foregoing, Loans having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Loans.
(c) Subject to Section 2.05 and to (i) in the case of any
Standby Committed Currency Loan, any applicable alternative procedures set forth
in Schedule II or (ii) in the case of any Alternate Currency Loan, any
alternative procedures set forth in the applicable Alternate Currency Addendum,
each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to the Administrative
Agent in New York, New York, not later than 12:00 noon, New York City time, and
the Administrative Agent shall by 2:00 p.m., New York City time, credit the
amounts so received to the account or accounts specified from time to time in
one or more notices delivered by the Company to the Administrative Agent or, if
a Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders. Competitive Loans shall be made by the Lender or Lenders
whose Competitive Bids therefor are accepted pursuant to Section 2.03 in the
amounts so accepted. Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's
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portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c), and the Administrative Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have made such portion available to the Administrative Agent, such Lender
and the applicable Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent at (i) in the case of
the Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(d) Each Competitive Loan shall be a Eurocurrency Competitive
Loan or a Fixed Rate Loan. Each Standby Dollar Loan shall be a Eurocurrency
Standby Loan or an ABR Loan. Each Standby Committed Currency Loan shall be a
Eurocurrency Standby Loan. Each Alternate Currency Loan shall be a Eurocurrency
Alternate Currency Loan or shall bear interest at a rate specified in the
applicable Alternate Currency Addendum.
SECTION 2.03. Competitive Bid Procedure. (a) In order to
request Competitive Bids, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit E-1 hereto, to be received by the Administrative Agent (i) in the case
of a Eurocurrency Competitive Borrowing, not later than 10:00 a.m., New York
City time, four Business Days before a proposed Competitive Borrowing and (ii)
in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one Business Day before a proposed Competitive Borrowing. No ABR Loan
shall be requested in, or made pursuant to, a Competitive Bid Request. A
Competitive Bid Request that does not conform substantially to the format of
Exhibit E-1 may be rejected in the Administrative Agent's sole discretion, and
the Administrative Agent shall promptly
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notify the Borrower of such rejection by telecopy. Each Competitive Bid Request
shall refer to this Agreement and specify (v) the Borrower submitting such
Competitive Bid Request, (w) whether the Borrowing then being requested is to be
a Eurocurrency Borrowing or a Fixed Rate Borrowing, (x) the date of such
Borrowing (which shall be a Business Day) and the aggregate principal amount
thereof, which shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000, (y) the maturity date of such Borrowing (which
may not be after the Maturity Date) and (z) the duration of each Interest Period
with respect thereto (the last of which may not end after the Maturity Date).
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall telecopy to each Lender a Notice of
Competitive Bid Request inviting the Lender to bid, on the terms and conditions
of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion,
make one or more Competitive Bids responsive to the Borrower's Competitive Bid
Request. Each Competitive Bid by a Lender must be received by the Administrative
Agent by telecopy, in the form of Exhibit E-3 hereto, (i) in the case of a
Eurocurrency Competitive Borrowing, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing and (ii) in
the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing. Multiple bids will be
accepted by the Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit E-3 may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (x) the principal amount (which shall
be in a minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested) of the Competitive Loan or Loans that the Lender is willing
to make, (y) the Competitive Bid Rate or Rates at which the Lender is prepared
to make the Competitive Loan or Loans and (z) the Interest Period and the last
day thereof. If any Lender invited to bid shall elect not to make a Competitive
Bid, such Lender shall so notify the Administrative Agent by telecopy (I) in the
case of Eurocurrency Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed
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Competitive Borrowing, and (II) in the case of Fixed Rate Loans, not later than
9:30 a.m., New York City time, on the day of a proposed Competitive Borrowing;
provided, however, that failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Lender pursuant to this
paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
Borrower, by telecopy, of all the Competitive Bids made, the Competitive Bid
Rate and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made, and the identity of the Lender that made each bid. The
Administrative Agent shall send a copy of all Competitive Bids to the Borrower
for its records as soon as practicable after completion of the bidding process
set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any of or all the bids referred to in paragraph (c) above
not more than one hour after it shall have been notified of such bids by the
Administrative Agent pursuant to such paragraph (c); provided, however, that (i)
the failure of the Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (ii) the Borrower
shall not accept a bid made at a particular Competitive Bid Rate if it has
decided to reject a bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request, (iv) if
the Borrower shall accept a bid or bids made at a particular Competitive Bid
Rate but the amount of such bid or bids shall cause the total amount of bids to
be accepted to exceed the amount specified in the Competitive Bid Request, then
the Borrower shall accept a portion of such bid or bids in an amount equal to
the amount specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in
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accordance with the amount of each such bid at such Competitive Bid Rate, and
(v) except pursuant to clause (iv) above, no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further, however,
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for an
integral multiple of $1,000,000, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the Borrower. A
notice given pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate) by telecopy, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has
been accepted.
(f) No Competitive Borrowing shall be requested or made
hereunder if after giving effect thereto any of the conditions set forth in
paragraph (c) of Section 2.01 would not be met.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the Borrower one quarter of an hour earlier than the latest time at which the
other Lenders are required to submit their bids to the Administrative Agent
pursuant to paragraph (b) above.
SECTION 2.04. Standby and Alternate Currency Borrowing
Procedure. (a) In order to request a Standby Borrowing, a Borrower shall hand
deliver or telecopy to the Administrative Agent a duly completed Standby
Borrowing Request in the form of Exhibit E-5 (i) in the case of a Eurocurrency
Standby Borrowing, not later than 10:30 a.m., New York City time, three Business
Days before such Borrowing, and (ii) in the case of an ABR Standby Borrowing,
not later than 10:30 a.m., New York City time, on the day of such Borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a Standby Borrowing
Request. Such notice
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shall be irrevocable and shall in each case specify (A) the Borrower requesting
such Standby Borrowing, (B) whether the Borrowing then being requested is to be
a Standby Dollar Borrowing or a Standby Committed Currency Borrowing and, if
such Standby Borrowing is to be a Standby Committed Currency Borrowing, the
Committed Currency in which such Borrowing shall be denominated, (C) if such
Borrowing is to be a Standby Dollar Borrowing, whether the Borrowing then being
requested is to be a Eurocurrency Standby Borrowing or an ABR Standby Borrowing;
(D) the date of such Standby Borrowing (which shall be a Business Day) and the
amount thereof; and (E) if such Borrowing is to be a Eurocurrency Standby
Borrowing, the duration of each Interest Period with respect thereto, the last
of which shall not end after the Maturity Date. If no election as to the Type of
Standby Borrowing is specified in any such notice with respect to a Standby
Dollar Borrowing, then the requested Standby Borrowing shall be an ABR Standby
Borrowing. If no Interest Period with respect to any Eurocurrency Standby
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. If no Committed
Currency with respect to any Eurocurrency Standby Borrowing is specified in such
notice, then the Borrower shall be deemed to have elected to have such Standby
Borrowing be denominated in Dollars. Notwithstanding any other provision of this
Agreement to the contrary, no Standby Borrowing shall be requested if the
proposed maturity date or the last Interest Period with respect thereto would
end after the Maturity Date. The Administrative Agent shall promptly advise the
Lenders of any notice given pursuant to this Section 2.04 and of each Lender's
portion of the requested Borrowing.
(b) In order to request an Alternate Currency Borrowing, a
Borrower shall give the notice required under the applicable Alternate Currency
Addendum and shall simultaneously deliver a copy of such notice to the
Administrative Agent.
SECTION 2.05. Conversion and Continuation of Standby Loans. A
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (i) not later than 10:30 a.m., New York City time, on the
day of the conversion, to convert all or any part of any Eurocurrency Standby
Borrowing denominated in Dollars into an ABR Standby Borrowing, and (ii) not
later than 10:30 a.m., New York City time, three Business Days prior to
conversion
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or continuation, to convert any ABR Standby Borrowing into a Eurocurrency
Standby Borrowing denominated in Dollars or to continue any Eurocurrency Standby
Borrowing as a Eurocurrency Standby Borrowing denominated in the same currency
for an additional Interest Period, subject in each case to the following:
(a) if less than all the outstanding principal amount of any
Standby Borrowing shall be converted or continued, (i) in the case of a
Standby Dollar Borrowing, the aggregate principal amount of the Standby
Dollar Borrowing being converted or continued shall be an integral
multiple of $1,000,000 and not less than $5,000,000 and (ii) in the
case of a Standby Committed Currency Borrowing, the Dollar Equivalent
of the aggregate principal amount of the Standby Committed Currency
Borrowing being converted or continued shall not be less than
$5,000,000;
(b) accrued interest on a Standby Borrowing (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(c) if any Eurocurrency Standby Borrowing is converted at a
time other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.15;
(d) any portion of a Standby Borrowing maturing or required to
be repaid in less than one month may not be converted into or continued
as a Eurocurrency Standby Borrowing and shall, unless clause (e)
applies to such Borrowing, be repaid at the end of the Interest Period
applicable thereto;
(e) any portion of a Eurocurrency Standby Borrowing which is a
Standby Dollar Borrowing and which cannot be continued as a
Eurocurrency Standby Borrowing by reason of clause (d) above shall, if
not repaid at the end of the applicable Interest Period, be
automatically converted at the end of the Interest Period in effect for
such Eurocurrency Standby Borrowing into an ABR Standby Borrowing; and
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(f) no Interest Period may be selected for any Eurocurrency
Standby Borrowing that would end later than the Maturity Date.
Each notice pursuant to this Section 2.05 shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and amount of the
Standby Borrowing to be converted or continued, (ii) whether such Standby
Borrowing is to be converted to or continued as a Eurocurrency Standby Borrowing
or an ABR Standby Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such Standby
Borrowing is to be converted to or continued as a Eurocurrency Standby
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurocurrency Standby Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If no notice shall have
been given in accordance with this Section 2.05 to convert or continue any
Standby Dollar Borrowing, such Standby Dollar Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Standby
Borrowing. If no notice shall have been given in accordance with this Section
2.05 to continue any Standby Committed Currency Borrowing, such Standby
Committed Currency Borrowing shall, at the end of the Interest Period applicable
thereto, become due and payable.
SECTION 2.06. Fees. (a) The Company agrees to pay to each
Lender, through the Administrative Agent, on each March 31, June 30, September
30 and December 31 (with the first payment being due on September 30, 1996) and
on each date on which the Commitment of such Lender shall be terminated as
provided herein, a facility fee (a "Facility Fee"), at a rate per annum equal to
the Facility Fee Percentage from time to time in effect on the amount of the
Commitment of such Lender, whether used or unused, during the preceding quarter
(or other period commencing on the date hereof, or ending with the Maturity Date
or any date on which the Commitment of such Lender shall be terminated). All
Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fee due to each Lender shall be
payable in arrears and shall commence to accrue on the date hereof, and shall
cease to
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accrue on the earlier of the Maturity Date and the termination of the Commitment
of such Lender as provided herein.
(b) The Company agrees to pay to the Administrative Agent, for
its own account, the administrative, auction and other fees separately agreed to
by the Company and the Administrative Agent (collectively, the "Administrative
Fees").
(c) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the Fees shall be refundable
under any circumstances other than to correct errors in payment.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each
of the Borrowers hereby agrees that the outstanding principal balance of each
Standby Loan or Alternate Currency Loan shall be payable on the Maturity Date
(unless, in the case of an Alternate Currency Loan, an earlier date is specified
in the Alternate Currency Addendum under which such Alternate Currency Loan was
made) and that the outstanding principal balance of each Competitive Loan shall
be payable on the last day of the Interest Period applicable thereto.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the currency of each
Loan, the Borrower of each Loan, the Type of each Loan and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder from
each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) and (c) of this Section 2.07 shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the
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failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the
Borrowers to repay the Loans in accordance with their terms.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions
of Section 2.09, the Loans comprising each Eurocurrency Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to (i) in the case of each Eurocurrency
Standby Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin from time to time in effect, (ii) in the case of each
Eurocurrency Competitive Loan, the LIBO Rate for the Interest Period in effect
for such Borrowing plus (or minus) the Margin offered by the Lender making such
Loan and accepted by the applicable Borrower pursuant to Section 2.03 and (iii)
in the case of each Eurocurrency Alternate Currency Loan, the LIBO Rate for the
Interest Period in effect for such Loan plus any spread specified in or pursuant
to the applicable Alternate Currency Addendum.
(b) Subject to the provisions of Section 2.09, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, for periods during which the Alternate Base Rate is determined by reference
to the Prime Rate and 360 days for other periods) at a rate per annum equal to
the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the
applicable Borrower pursuant to Section 2.03.
(d) Subject to the provisions of Section 2.09, the Loans
comprising each Alternate Currency Borrowing (other than a Eurocurrency
Borrowing) shall bear interest at the rate or rates per annum and calculated in
the manner specified in or pursuant to the applicable Alternate Currency
Addendum.
(e) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement or in an applicable
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39
Alternate Currency Addendum. The applicable LIBO Rate or Alternate Base Rate for
each Interest Period or day within an Interest Period, as the case may be, shall
be presumed correct in the absence of facts indicating that such determination
is erroneous (it being understood that the Borrower shall not have access to the
internal records of the Administrative Agent for the purpose of confirming such
determination).
SECTION 2.09. Default Interest. If any Borrower shall default
in the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, such Borrower shall on demand from time to time from
the Administrative Agent pay interest from and including the date of such
default, to the extent permitted by law, on such defaulted amount up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (computed as provided in Section 2.08(b)) equal to the higher of
(a) the rate, if any, otherwise applicable to such amount hereunder plus 2% per
annum and (b) the Alternate Base Rate plus 2% per annum (or, in the case of an
Alternate Currency Loan, such other rate as may be specified in the applicable
Alternate Currency Addendum).
SECTION 2.10. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurocurrency Borrowing or Multicurrency Borrowing the
Administrative Agent shall have determined (i) that deposits in the applicable
currency in the principal amounts of the Loans comprising such Borrowing are not
generally available in the London interbank market or any other market in which
the Lenders shall be funding such Loans, (ii) that the rates at which such
deposits in the applicable currency are being offered will not adequately and
fairly reflect the cost to Lenders having Commitments representing at least 50%
of the Total Commitment at such time (or, in the case of Alternate Currency
Loans, Alternate Currency Lenders having Alternate Currency Lender Maximum
Borrowing Amounts representing at least 50% of the Alternate Currency Facility
Maximum Borrowing Amount at such time under the applicable Alternate Currency
Addendum (in each case determined without regard for any adjustments thereto
pursuant to Section 2.23) of making or maintaining their Eurocurrency Loans or
Multicurrency Loans during such Interest Period or (iii) that reasonable
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40
means do not exist for ascertaining the LIBO Rate or any other rate to be used
in determining the interest rate applicable to any Alternate Currency Loans, the
Administrative Agent shall, as soon as practicable thereafter, give telecopy
notice of such determination to the Company and the Lenders or the applicable
Alternate Currency Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Company and the Lenders or the
applicable Alternate Currency Lenders that the circumstances giving rise to such
notice no longer exist, any request by a Borrower for a Eurocurrency Borrowing
pursuant to Section 2.03 or for a Borrowing denominated in the applicable
Eligible Currency shall be of no force and effect and shall be denied by the
Administrative Agent, and any request by a Borrower for a Eurocurrency Standby
Borrowing denominated in Dollars pursuant to Section 2.04 shall be deemed to be
a request for an ABR Standby Borrowing denominated in Dollars. Each
determination by the Administrative Agent hereunder shall be presumed correct in
the absence of facts indicating that such determination is erroneous (it being
understood that the Borrower shall not have access to the internal records of
the Administrative Agent for the purpose of confirming such determination).
SECTION 2.11. Termination and Reduction of Commitments. (a)
The Commitments shall be automatically and permanently terminated on the
Maturity Date.
(b) Upon at least three Business Days' prior irrevocable
telecopy notice to the Administrative Agent, the Company may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Total Commitment; provided, however, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $5,000,000 and (ii) no such termination or reduction shall
be made (A) which would reduce the Total Commitment to an amount less than the
sum of the aggregate Standby Credit Exposures and the aggregate Competitive Loan
Exposures, (B) which would reduce any Lender's Commitment to an amount that is
less than such Lender's Standby Credit Exposure or (C) which would reduce any
Lender's Commitment to an amount that is less than the aggregate of all the
Alternate Currency Lender Maximum Borrowing Amounts of such Lender.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in
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41
accordance with their respective Commitments. The Company shall pay to the
Administrative Agent for the account of the Lenders, on the date of each
termination or reduction of the Total Commitment, the Facility Fees on the
amount of the Commitments so terminated accrued through the date of such
termination or reduction.
SECTION 2.12. Prepayment. (a) The Borrowers shall have the
right at any time and from time to time to prepay any Standby Borrowing or,
unless otherwise specified in the applicable Alternate Currency Addendum, any
Alternate Currency Borrowing, in whole or in part, upon giving telecopy notice
(or telephone notice promptly confirmed by telecopy) to the Administrative
Agent: (i) before 10:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of a Eurocurrency Standby Borrowing, (ii) before 10:00
a.m., New York City time, one Business Day prior to prepayment, in the case of
an ABR Borrowing and (iii) in the case of an Alternate Currency Borrowing, by
such time as shall be specified in the applicable Alternate Currency Addendum;
provided, however, that (i) each partial prepayment of any Standby Dollar
Borrowing shall be in an amount which is an integral multiple of $1,000,000 and
not less than $5,000,000, (ii) each partial prepayment of any Standby Committed
Currency Borrowing shall be in a Dollar Equivalent which is not less than
$5,000,000 and (iii) each partial prepayment of any Alternate Currency Borrowing
shall be in any minimum amount specified in the applicable Alternate Currency
Addendum. No prepayment may be made in respect of any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11, the Borrowers shall pay or prepay so much
of the Standby Borrowings as shall be necessary in order that the sum of the
aggregate Standby Credit Exposures and the aggregate Competitive Loan Exposures
will not exceed the Total Commitment, after giving effect to such termination or
reduction.
(c) If, on the last day of any Interest Period for any
Borrowing, the sum of the aggregate Standby Credit Exposures and the aggregate
Competitive Loan Exposures exceeds the Total Commitment, the applicable Borrower
shall, on such day, prepay such Borrowing in an amount equal to the lesser of
(i) such excess and (ii) the amount of such Borrowing.
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42
(d) If, on the last day of any Interest Period for any
Borrowing that includes a Loan of any Lender, the Standby Credit Exposure of
such Lender exceeds such Lender's Commitment, the applicable Borrower shall, on
such day, prepay such Borrowing in an amount equal to the lesser of (i) the
amount necessary to eliminate such excess and (ii) the amount of such Borrowing.
(e) Each notice of prepayment given pursuant to paragraph (a)
above shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the applicable Borrower to prepay such Borrowing (or portion thereof) in
the amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.15 but otherwise without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, except as provided in Section
2.19, if any Change in Law shall result in the imposition, modification or
applicability of any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of or credit extended by any Lender,
or shall result in the imposition on any Lender or the London interbank market
or any other market in which the funding operations of any Lender shall be
conducted of any other condition affecting this Agreement, such Lender's
Commitment or any Eurocurrency Loan, Fixed Rate Loan or Alternate Currency Loan
made by such Lender, and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any Eurocurrency Loan, Fixed
Rate Loan or Alternate Currency Loan or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material, then the Borrowers
agree jointly and severally to pay such additional amount or amounts as will
compensate such Lender for such additional costs or reduction. Notwithstanding
the foregoing, no Lender shall be entitled to request compensation under this
paragraph with respect to any Competitive Loan if the Change in Law giving rise
to such request was known by such Lender to be applicable to it at the time of
submission of the Competitive Bid pursuant to which such Competitive Loan was
made.
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43
(b) If any Lender shall have determined that Change in Law
regarding capital adequacy has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement, such Lender's Commitment or
the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender's holding company could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's policies
and the policies of such Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender to be material, then the Borrowers
agree jointly and severally to pay to such Lender from time to time such
additional amount or amounts as will compensate such Lender for such reduction.
(c) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender or its holding company
as specified in paragraph (a) or (b) above, as the case may be, and setting
forth and explaining in reasonable detail the manner in which such amount or
amounts shall have been determined, shall be delivered to the Company with a
copy to the Administrative Agent and shall be conclusive absent manifest error.
The Borrowers shall pay each Lender the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's right to demand such compensation with respect to such period or
any other period, except that no Lender shall be entitled to any compensation
under this Section 2.13 for any costs incurred or reduction suffered with
respect to any date unless such Lender shall have notified the Company that it
will demand compensation for such costs or reductions under paragraph (c) above
not more than 90 days after the later of (i) such date and (ii) the date on
which such Lender shall have become aware of such costs or reductions. The
protection of this Section shall be available to each Lender regardless of any
possible contention of the invalidity or inapplicability of any law, rule,
regulation or guideline or any Change in Law.
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44
SECTION 2.14. Change in Legality. (a) Notwithstanding any
other provision herein, if any Change in Law shall make it unlawful for any
Lender or its Applicable Lending Office to make or maintain any Eurocurrency
Loan or Multicurrency Loan or to give effect to its obligations as contemplated
hereby with respect to any Eurocurrency Loan or Multicurrency Loan or shall
limit the convertability into Dollars of any Eligible Currency (or make such
conversion commercially impracticable), then, by written notice to the Company
and to the Administrative Agent, such Lender may:
(i) declare that Eurocurrency Loans or Multicurrency Loans in
any affected currency will not thereafter be made by such Lender
hereunder, whereupon (A) if Eurocurrency Loans denominated in Dollars
shall be affected, such Lender shall not submit a Competitive Bid in
response to a request for Eurocurrency Competitive Loans, and (B) any
request by any Borrower for Eurocurrency Loans or Multicurrency Loans
in an affected currency shall, as to such Lender only, (x) in the case
of a request for Eurocurrency Loans denominated in Dollars, be deemed a
request for an ABR Loan in Dollars and (y) in any other case, be of no
force or effect; unless, in each case, such declaration shall be
subsequently withdrawn; and
(ii) promptly upon becoming aware of a prospective Change in
Law enter into negotiations with the applicable Borrower and negotiate
in good faith to agree to a solution to such illegality, limitation or
impracticability; provided, however, that if such an agreement has not
been reached by the date at which such Change in Law makes unlawful the
outstanding Eurocurrency Loans or Multicurrency Loans of such Lender,
such Borrower shall immediately prepay the affected Loans.
(b) For purposes of this Section 2.14, a notice by any Lender
shall be effective as to each Eurocurrency Loan, if lawful, on the last day of
the Interest Period currently applicable to such Eurocurrency Loan; in all other
cases such notice shall be effective on the date of receipt.
SECTION 2.15. Indemnity. The Borrowers agree, jointly and
severally, to indemnify each Lender against any loss or expense which such
Lender may sustain or incur as a
<PAGE>
45
consequence of (a) any failure by any Borrower to borrow or to refinance,
convert or continue any Loan hereunder after irrevocable notice of such
borrowing, refinancing, conversion or continuation has been given pursuant to
Section 2.03, 2.04 or 2.05, (b) any payment, prepayment or conversion of a Loan
to any Borrower required by any other provision of this Agreement or otherwise
made or deemed made, or any purchase required pursuant to the provisions of
Section 2.20(b), on a date other than the last day of the Interest Period, if
any, applicable thereto, or (c) any default by any Borrower in payment or
prepayment of the principal amount of any Loan or any part thereof or interest
accrued thereon, as and when due and payable (at the due date thereof, whether
by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise), including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any part
thereof. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed
(which in the case of a Eurocurrency Loan will be assumed to be the LIBO Rate
applicable thereto) for the period from the date of such payment, prepayment,
refinancing or failure to borrow or refinance to the last day of the Interest
Period for such Loan (or, in the case of a failure to borrow or refinance, the
Interest Period for such Loan which would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the funds so paid,
prepaid or not borrowed or refinanced for such period or Interest Period, as the
case may be. A certificate of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section and setting
forth in reasonable detail the manner in which such amount or amounts shall have
been determined shall be delivered to such Borrower with a copy to the
Administrative Agent and shall be conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Each payment of the Facility
Fees and each reduction of the Commitments shall be allocated pro rata among the
Lenders in accordance with their respective Commitments. Except as required
under Section 2.14, each payment or prepayment of principal of any Standby
Borrowing and each refinancing or conversion of any Standby Borrowing shall be
allocated pro rata among the
<PAGE>
46
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Standby Loans comprising such Borrowing.
Each payment of interest on any Standby Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding Standby
Loans comprising such Borrowing. Except as required under Section 2.14, each
payment or prepayment of principal of any Alternate Currency Borrowing and each
refinancing or conversion of any Alternate Currency Borrowing shall be allocated
pro rata among the Lenders participating in such Borrowing in accordance with
the respective principal amounts of their outstanding Alternate Currency Loans
comprising such Borrowing. Each payment of interest on any Alternate Currency
Borrowing shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Alternate Currency Loans comprising such
Borrowing. Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Competitive Loans comprising
such Borrowing. Each Lender agrees that in computing such Lender's portion of
any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next higher
or lower whole Dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Standby
Loans as a result of which the unpaid principal portion of its Standby Loans
shall be proportionately less than the unpaid principal portion of the Standby
Loans of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay
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47
to such other Lender the purchase price for, a participation in the Standby
Loans of such other Lender, so that the aggregate unpaid principal amount of the
Standby Loans and participations in the Standby Loans held by each Lender shall
be in the same proportion to the aggregate unpaid principal amount of all
Standby Loans then outstanding as the principal amount of its Standby Loans
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Standby Loans outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Any Lender holding a participation in a
Standby Loan deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
to such Lender by reason thereof as fully as if such Lender had made a Standby
Loan in the amount of such participation.
SECTION 2.18. Payments. (a) Except as otherwise set forth in
Schedule II with respect to Standby Committed Currency Loans or in any Alternate
Currency Addendum with respect to Alternate Currency Loans made thereunder, each
Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder not later than 12:00 noon, New
York City time, on the date when due in Dollars or the applicable Eligible
Currency, as the case may be, to the Administrative Agent at its offices at 270
Park Avenue, New York, New York, in immediately available funds. All principal
and interest with respect to a Loan made in an Eligible Currency shall be repaid
in such Eligible Currency.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Subject, in the case of a payment to
a Lender, to compliance by such Lender with the
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48
requirements with Section 2.19(e), any and all payments by or on account of any
obligation of any Borrower hereunder shall be made free and clear of and without
deduction for any Taxes or Other Taxes except as required by applicable law;
provided that if any Borrower shall be required to deduct any Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) The Borrowers agree jointly and severally to pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Subject, in the case of a payment to a Lender, to
compliance by such Lender with the requirements with Section 2.19(e), the
Borrowers shall indemnify the Administrative Agent and such Lender within 10
days after written demand therefor for the full amount of any Taxes or Other
Taxes (including Taxes or Other Taxes imposed or asserted on amounts payable
under this Section) paid by the Administrative Agent or such Lender, as the case
may be, with respect to payments by or on account of any obligation of any
Borrower hereunder and any liability (including penalties, interest and
reasonable expenses) arising therefrom or with respect thereto, payable by such
Lender, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment delivered to a Borrower by a Lender or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Taxes or Other
Taxes by any Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
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49
(e) Each Foreign Lender that is entitled to an exemption from
or reduction of withholding tax on payments under this Agreement pursuant to the
law of the Relevant Jurisdiction or any treaty to which the Relevant
Jurisdiction is a party or otherwise, shall submit properly completed and
executed forms, certificates and other documentation prior to receiving any
payment hereunder demonstrating such entitlement and shall deliver to the
Borrower (with a copy to the Administrative Agent), at the required time or
times, further copies of such properly completed and duly executed forms,
certificates and other documentation (if any) prescribed by applicable law that
will permit such payments to be made without withholding or at a reduced rate.
(f) If independent tax counsel (reasonably acceptable to the
relevant Lender) for a Borrower in a Relevant Jurisdiction opines that a
reasonable basis exists for seeking a refund or reduction of any payment of an
increased amount or other indemnification respecting a Tax or Other Tax made by
the Borrower under this Section 2.19, such Lender will use reasonable efforts to
obtain such refund or reduction, and upon irrevocable receipt of the benefit
thereof, if any, will pay to the Borrower an amount (plus any interest received
by the Lender as part of the relevant refund) equal to such part of such refund
or reduction as is attributable to such Tax or Other Tax; provided, however,
that (1) no Lender shall be obligated by this Section 2.19(f) to disclose to the
Borrower any information regarding any of its financial or tax affairs or
computations, (2) prior to taking such action the Borrower shall have agreed to
pay the Lender all reasonable out-of-pocket costs and expenses that the Lender
may incur in connection with its efforts to obtain such refund or reduction and
(3) in the opinion of such independent tax counsel, the aggregate amount of such
refund or reduction may reasonably be expected to exceed Fifty Thousand Dollars
($50,000). Each Lender hereby agrees that it will not object to the Borrower's
presence (but not participation) at the relevant portion of any proceeding
conducted pursuant to this Section 2.19(f); provided that the Borrower's
presence also must be allowed by applicable law.
(g) If a claim is made against any Lender for any Taxes that
any Borrower is required to pay or indemnify against pursuant to this Section
2.19, such Lender shall notify such Borrower in writing within 30 days of the
receipt of such claim; provided that a failure to so notify will not diminish or
relieve the Borrower of any obligations under
<PAGE>
50
Section 2.19, except to the extent a successful defense of such claim is
materially prejudiced or precluded thereby. If requested by the Borrower in
writing within 30 days after provision to the Borrower of the notice described
in the preceding sentence, the Lender shall in good faith and with due diligence
contest (including pursuing all administrative and judicial appeals) in the name
of the Lender or, if permitted by law and requested by the Borrower, in the name
of the Borrower, the validity, applicability or amount of such Taxes in
appropriate administrative or judicial proceedings; provided that (1) prior to
taking such action the Borrower shall have obtained an opinion of independent
tax counsel (reasonably acceptable to the Lender) that a reasonable basis exists
for contesting such claim and shall have agreed to pay the Lender all reasonable
out-of-pocket costs and expenses that the Lender may incur in connection with
contesting such claim, (2) if such contest is to be initiated by the payment of,
and the claiming of a refund for, such Taxes, the Borrower shall have advanced
the Lender sufficient funds (on an interest-free basis) to make such payment,
and (3) the aggregate amount in controversy with respect to such contest shall
exceed Fifty Thousand Dollars ($50,000). Notwithstanding that the conditions set
forth in clauses (1), (2) and (3) above may have been satisfied, the Lender may
elect not to pursue any contest or proceeding pursuant to the preceding sentence
or elect to discontinue (by settlement or otherwise) any such contest or
proceeding commenced pursuant to the preceding sentence, but such election shall
constitute a waiver by the Lender of any right to payment or indemnification
pursuant to Section 2.19 with respect to the adjustment that was the subject of
such proposed contest or proceeding and, if the Borrower has theretofore paid or
provided the Lender with funds to pay any amount with respect to such
adjustment, the Lender shall promptly repay such amount to the Borrower. Each
Lender hereby agrees that it will not object to the Borrower's presence (but not
participation) at the relevant portion of any proceeding conducted pursuant to
this Section 2.19(g); provided that the Borrower's presence also must be allowed
by applicable law.
(h) Notwithstanding anything to the contrary contained herein,
if the appropriate district director of the Internal Revenue Service determines
that a Lender is a "conduit entity" participating in a "conduit financing
arrangement" (as defined in Section 7701(l) of the Code and the Treasury
Regulations issued pursuant thereto) with
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51
respect to any payments made by any Borrower hereunder, such Borrower shall not
be obligated to pay additional amounts to such Lender pursuant to this Section
2.19 to the extent that the amount of Taxes or Other Taxes exceeds the amount
that would have otherwise been payable had such Lender not been a conduit entity
participating in a conduit financing arrangement; provided, however, that this
Section 2.19(h) shall not apply if such Borrower is determined to be a "financed
entity" (as defined in Section 7701(l) of the Code and the Treasury Regulations
issued pursuant thereto).
SECTION 2.20. Duty to Mitigate; Assignment of Commitments
Under Certain Circumstances. (a) Any Lender claiming any additional amounts
payable pursuant to Section 2.13 or 2.19, or exercising its rights under Section
2.14, shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the sole determination of such Lender,
be otherwise disadvantageous to such Lender.
(b) In the event that (i) any Lender shall have delivered a
notice or certificate pursuant to Section 2.13 or 2.14, (ii) any Borrower shall
be required to make additional payments to any Lender under Section 2.19, (iii)
any Lender shall become, or a substantial part of the property of any Lender
shall become, the subject of any receivership or similar proceeding (a "Bank
Proceeding") or (iv) any Lender shall default on its commitment to lend
hereunder or under any applicable Alternate Currency Addendum (a "Bank
Default"), the Company shall have the right, at its own expense, upon notice to
such Lender and the Administrative Agent, (x) to terminate the Commitment of
such Lender or (y) to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04) all interests, rights and obligations contained hereunder to
another financial institution approved by the Administrative Agent (which
approval shall not be unreasonably withheld) or to another Lender which shall
assume such obligations; provided that (A) no such termination or assignment
shall conflict with any law, rule or regulation or order of any Governmental
Authority and (B) the assignee or the Company, as the case
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52
may be, shall pay to the affected Lender in immediately available funds on the
date of such termination or assignment the principal of and the interest accrued
to the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder.
SECTION 2.21. Borrowing Subsidiaries. The Company may
designate any Subsidiary as a Borrowing Subsidiary. Upon the receipt by the
Administrative Agent of a Borrowing Subsidiary Agreement in the form of Exhibit
C executed by such Subsidiary and the Company, such Subsidiary shall be a
Borrowing Subsidiary and a party to this Agreement. Any Subsidiary shall cease
to be a Borrowing Subsidiary hereunder at such time as no Loans shall be
outstanding to such Subsidiary and such Subsidiary and the Company shall have
executed and delivered to the Administrative Agent a Borrowing Subsidiary
Termination in the form of Exhibit D. Upon a Borrowing Subsidiary's liquidation,
dissolution or sale or disposition (including by merger) to a person other than
the Company or any Subsidiary, all Loans outstanding to such Borrowing
Subsidiary shall become immediately due and payable and such Subsidiary shall no
longer be entitled to borrow hereunder.
SECTION 2.22. Terms of Alternate Currency Facilities. (a) Each
of the Company and one or more Alternate Currency Lenders may in their
respective discretion from time to time agree that one or more Borrowers may
borrow Alternate Currency Loans on a revolving basis from any one or more
Alternate Currency Lenders by delivering an Alternate Currency Addendum to the
Administrative Agent, executed by the Company, each such Borrowing Subsidiary
and each such Alternate Currency Lender; provided, however, that on the
effective date of such Borrowing (i) an Exchange Rate with respect to each
Alternate Currency covered by such Alternate Currency Addendum shall be
determinable by reference to the Reuters currency pages (or a comparable
publicly available screen) and (ii) no Default or Event of Default shall have
occurred and be continuing. Each reference in this Agreement to any Lender
shall, to the extent applicable, be deemed also to be a reference to each
Alternate Currency Lender, subject to the second sentence of the definition of
such term.
(b) Each Alternate Currency Addendum shall set forth (i) the
maximum amount (expressed in Dollars and without duplication) available to be
borrowed from all Alternate Currency Lenders under such Alternate Currency
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53
Addendum (as the same may be reduced from time to time pursuant to Section
2.23(a) or 2.23(b), an "Alternate Currency Facility Maximum Borrowing Amount")
and (ii) with respect to each Alternate Currency Lender party to such Alternate
Currency Addendum, the maximum amount (expressed in Dollars and without
duplication) available to be borrowed from such Alternate Currency Lender
thereunder (as the same may be reduced from time to time pursuant to Section
2.23(a) or 2.23(b), an "Alternate Currency Lender Maximum Borrowing Amount"). In
no event shall the aggregate of all Alternate Currency Lender Maximum Borrowing
Amounts in respect of any Alternate Currency Lender at any time exceed such
Lender's Commitment. Except as provided herein, the making of Alternate Currency
Loans by an Alternate Currency Lender under an Alternate Currency Addendum shall
under no circumstances reduce the amount available to be borrowed from such
Lender under any other Alternate Currency Addendum to which such Lender is a
party.
(c) Except as otherwise required by applicable law, in no
event shall the Alternate Currency Lenders have the right to accelerate the
Alternate Currency Loans outstanding under any Alternate Currency Addendum or to
terminate their commitments (if any) thereunder to make Alternate Currency Loans
prior to the stated termination date in respect thereof, except that such
Alternate Currency Lenders shall, in each case, have such rights upon an
acceleration of the Loans and a termination of the Commitments pursuant to
Article VII. No Alternate Currency Loan may be made if (i) an Exchange Rate with
respect to the applicable Alternate Currency cannot be determined, or (ii) after
giving effect thereto, (A) the Standby Credit Exposure of any Lender would
exceed such Lender's Commitment, (B) the Dollar Equivalent of the aggregate
principal amount of outstanding Alternate Currency Loans denominated in a
specified Eligible Currency would exceed the applicable Alternate Currency
Facility Maximum Borrowing Amount, or (C) the sum of the aggregate Standby
Credit Exposures of all Lenders and the aggregate Competitive Loan Exposures of
all Lenders would exceed the Total Commitment.
(d) The applicable Borrower and the applicable Alternate
Currency Lenders, or, if so specified in the relevant Alternate Currency
Addendum, an Alternate Currency Agent acting on their behalf, shall furnish to
the Administrative Agent, promptly following the making, payment or prepayment
of each Alternate Currency Loan, and at any
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54
other time at the reasonable request of the Administrative Agent, a statement
setting forth the outstanding Alternate Currency Loans made under such Alternate
Currency Addendum.
(e) The relevant Borrowing Subsidiary or the Company shall
furnish to the Administrative Agent copies of any amendment, supplement or other
modification to the terms of any Alternate Currency Addendum promptly after the
effectiveness thereof.
(f) The Company may terminate any Alternate Currency Addendum
in its sole discretion if there are not any Loans outstanding thereunder (or, if
there are Loans outstanding thereunder, with the consent of each Alternate
Currency Lender party thereto), by written notice to the Administrative Agent,
which notice shall be executed by the Company, each relevant Borrowing
Subsidiary and, if their consent is required, each such Alternate Currency
Lender. Once notice of such termination is received by the Administrative Agent,
such Alternate Currency Addendum and the loans and other obligations outstanding
thereunder shall immediately cease to be subject to the terms of this Agreement.
SECTION 2.23. Currency Fluctuations, etc. (a) If, on any Reset
Date or the date of any Borrowing (after giving effect to (i) any Loans to be
made or repaid on such date and (ii) any amendment, supplement or other
modification to any Alternate Currency Addendum effective on such date of which
the Administrative Agent has received notice), the aggregate outstanding Standby
Extensions of Credit of any Lender exceed the Standby Credit Overage of such
Lender (the amount of such excess being called the "Standby Credit Excess"),
then such Lender's Alternate Currency Lender Maximum Borrowing Amount under each
Alternate Currency Addendum to which such Lender is a party shall be reduced on
such date by an amount equal to the product of such Standby Credit Excess times
a fraction the numerator of which shall equal the Alternate Currency Lender
Maximum Borrowing Amount under such Alternate Currency Addendum and the
denominator of which shall equal the aggregate of all the Alternate Currency
Lender Maximum Borrowing Amounts of such Lender. After giving effect to any such
reduction in Alternate Currency Lender Maximum Borrowing Amounts, the Alternate
Currency Facility Maximum Borrowing Amount with respect to each Alternate
Currency Addendum shall in turn be reduced to an amount equal to the aggregate
of the Alternate Currency Lender Maximum Borrowing Amounts of all
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55
Lenders party to such Alternate Currency Addendum. Reductions in Alternate
Currency Facility Maximum Borrowing Amounts and Alternate Currency Lender
Maximum Borrowing Amounts pursuant to this paragraph shall be effective until
the amount thereof shall be recalculated by the Administrative Agent or the
Alternate Currency Agent, as applicable, on the next succeeding Reset Date or
date of a Borrowing, and shall not be deemed to reduce the stated amount of any
commitment of any Alternate Currency Lender in respect of any Alternate Currency
Addendum.
(b) If, on any Reset Date or date of a Borrowing (after giving
effect to (i) any Loans to be made or repaid on such date, (ii) any amendment,
supplement or other modification to any Alternate Currency Addendum effective on
such date of which the Administrative Agent has received notice and (iii) any
reduction in the Alternate Currency Facility Maximum Borrowing Amounts pursuant
to paragraph (a) above effective on such date), the sum of (A) the aggregate
outstanding Standby Extensions of Credit of all the Lenders and (B) the
aggregate Competitive Loan Exposure exceeds the Facility Overage (the amount of
such excess being called the "Facility Excess"), then the Alternate Currency
Facility Maximum Borrowing Amount under each Alternate Currency Addendum shall
be reduced on such date by an amount equal to the product of such Facility
Excess times a fraction the numerator of which shall equal the Alternate
Currency Facility Maximum Borrowing Amount under such Alternate Currency
Addendum and the denominator of which shall equal the aggregate of the Alternate
Currency Facility Maximum Borrowing Amounts with respect to all Alternate
Currency Addenda. Each such reduction in the Alternate Currency Facility Maximum
Borrowing Amount under an Alternate Currency Addendum shall in turn reduce the
respective Alternate Currency Lender Maximum Borrowing Amounts of each Alternate
Currency Lender party to such Alternate Currency Addendum, pro rata on the basis
of the respective Alternate Currency Lender Maximum Borrowing Amounts of such
Alternate Currency Lenders immediately prior to such reduction. Reductions in
Alternate Currency Facility Maximum Borrowing Amounts and Alternate Currency
Lender Maximum Borrowing Amounts pursuant to this paragraph shall be effective
until the amount thereof shall be recalculated by the Administrative Agent or
the Alternate Currency Agent, as applicable, on the next succeeding Reset Date
or date of a Borrowing, and shall not be deemed to reduce the stated amount of
any commitment of
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56
any Alternate Currency Lender in respect of any Alternate Currency Addendum.
(c) If on any Reset Date, the Dollar Equivalent of all
Alternate Currency Loans outstanding under any Alternate Currency Addendum
exceeds 105% of the Alternate Currency Facility Maximum Borrowing Amount with
respect thereto (after giving effect to any reductions therein effected pursuant
to paragraphs (a) and (b) above on such date), the relevant Borrower shall on
such Reset Date (i) increase the Alternate Currency Facility Maximum Borrowing
Amount with respect to such Alternate Currency Facility in accordance with
Section 10.02 and/or (ii) prepay Alternate Currency Loans, in either case in an
aggregate amount such that, after giving effect thereto, (x) the Dollar
Equivalent of all such Alternate Currency Loans shall be equal to or less than
such Alternate Currency Facility Maximum Borrowing Amount and (y) the Dollar
Equivalent of the Alternate Currency Loans of each relevant Alternate Currency
Lender shall be equal to or less than such Alternate Currency Lender's Alternate
Currency Lender Maximum Borrowing Amount with respect to such Alternate Currency
Addendum.
(d) The Administrative Agent or the Alternate Currency Agent,
as applicable, shall promptly notify the relevant Lenders of the amount of any
reductions in Alternate Currency Facility Maximum Borrowing Amounts or Alternate
Currency Lender Maximum Borrowing Amounts required pursuant to this Section
2.23.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. (a) The obligations of the
Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 10.02):
(i) receipt by the Administrative Agent of counterparts hereof
signed by each of the parties hereto;
(ii) receipt by the Administrative Agent, on behalf of itself
and the Lenders, of an opinion of Winthrop,
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57
Stimson, Putnam & Roberts, counsel for the Company, substantially in
the form of Exhibit F hereto, dated the Effective Date and covering
such additional matters relating to the transactions contemplated
hereby as the Required Lenders may reasonably request;
(iii) receipt by the Administrative Agent of a certificate,
dated the Effective Date, signed by the chief financial officer, the
chief accounting officer, or the treasurer of the Company to the effect
set forth in clauses (b) and (c) of Section 3.02;
(iv) receipt by the Administrative Agent of all documents it
may reasonably request relating to the existence or good standing of
the Company or any other Borrower or Guarantor, the corporate power and
authority of the Company and any such other Borrower or Guarantor to
enter into and the validity of this Agreement and the other Loan
Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent; and
(v) receipt by the Administrative Agent of any governmental
and third party approvals necessary or advisable in connection with the
transactions contemplated by this Agreement.
SECTION 3.02. Borrowings. The obligation of each Lender to
make a Loan on the occasion of any Borrowing (including an Alternate Currency
Borrowing) hereunder is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.03 or 2.04, as the case may be;
(b) immediately prior to and after such Borrowing, no Default
shall have occurred and be continuing; and
(c) the representations and warranties of the Borrowers
contained in this Agreement shall be true on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrowers on the date of such Borrowing as to the matters specified in
clauses (b) and (c) of this Section.
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58
SECTION 3.03. Initial Borrowing by Each Borrowing Subsidiary.
The obligation of each Lender to make a Loan on the occasion of the first
Borrowing by each Borrowing Subsidiary is subject to the satisfaction of the
following conditions:
(a) receipt by the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary and
acknowledged by the Company;
(b) receipt by the Administrative Agent of all documents as
shall reasonably demonstrate the existence of such Borrowing
Subsidiary, the corporate power and authority of such Borrowing
Subsidiary to enter into and the validity with respect to such
Borrowing Subsidiary of this Agreement and the other Loan Documents and
any other matters relevant hereto (which may include an opinion of
counsel), all in form and substance satisfactory to the Administrative
Agent; and
(c) receipt by the Administrative Agent of any governmental
and third party approvals necessary or advisable in connection with the
execution, delivery and performance by such Borrowing Subsidiary of
this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company and each Borrowing Subsidiary represents and
warrants to the Administrative Agent and each of the Lenders as follows:
SECTION 4.01. Organization; Powers. Each of the Company and
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all requisite
power and authority to carry on its business as now conducted, except, in the
case of Subsidiaries not party to any Loan Document, where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, and, (b) except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is
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59
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
SECTION 4.02. Authorization; Enforceability. The Transactions
are within the corporate powers of the Company and each Subsidiary party hereto
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Company and each Subsidiary party hereto and constitutes a legal, valid and
binding obligation of each of them, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Company or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Company or any of
its Subsidiaries or any assets of any of them, or give rise to a right
thereunder to require any payment to be made by the Company or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 1995, reported on by Ernst & Young LLP,
independent public accountants, by their report dated April 5, 1996 and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended March 31,
1996. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments
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and the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since December 31, 1995, except as disclosed in Schedule
4.04(b), there has been no material adverse change in the business, assets,
operations, prospects or condition, financial or otherwise, of the Company and
its Subsidiaries, taken as a whole.
SECTION 4.05. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to the business of the Company and its
Subsidiaries, taken as a whole, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the business of the Company and its
Subsidiaries, taken as a whole, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental Matters. (a) Except
as disclosed in Schedule 4.06(a), there are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect or (ii) that
involve this Agreement or the Transactions.
(b) Except with respect to any matters that, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, to the knowledge of the Company neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law,
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61
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
SECTION 4.07. Compliance with Laws and Agreements. To the
knowledge of the Company, each of the Company and its Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and is in compliance with and not in default
under any indentures, agreements and other instruments binding upon it or its
property, except where the failure to be in compliance or not in default,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. No Default has occurred and is continuing.
SECTION 4.08. Not an Investment Company or Holding Company.
Neither the Company nor any of its Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 4.09. Taxes. Each of the Company and its Subsidiaries
has filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the
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62
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $10,000,000 the fair market value of the
assets of all such underfunded Plans.
SECTION 4.11. Disclosure. To the knowledge of the Company,
none of the reports, financial statements, certificates or other information
furnished by or on behalf of the Company to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 4.12. Federal Reserve Regulations. (a) Neither the
Company nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying margin stock (as defined in Regulation U).
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board of Governors of the Federal Reserve
System of the United States of America, including Regulation G, U or X. Not more
than 25% of the assets of the Company and the Subsidiaries that are subject to
the restrictions of Sections 6.01 and 6.03 will at any time constitute margin
stock.
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63
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company and each Borrowing Subsidiary covenant and agree
with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent with copies for each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by a firm of
independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
the Company and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period of the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Company and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
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64
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Company (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
the Consolidated Leverage Ratio as of the end of the period covered by
such financial statements and reasonably detailed calculations
demonstrating compliance with Sections 6.07, 6.08, 6.09 and 6.10 (which
shall show adjustments calculated in accordance with GAAP consistently
applied, for pro forma results of any Person, division or other
business unit acquired or disposed of during the period of four
quarters ending on the last day of the period covered by such financial
statements and calculations showing the manner in which the
Consolidated Leverage Ratio shall have been determined) and (iii)
stating whether any change in GAAP relevant to the Company or its
Subsidiaries or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 4.04 and, if
any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed by the Company to its shareholders generally,
as the case may be; and
(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Company or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Administrative Agent with copies for each Lender prompt written
notice of the following:
(a) the occurrence of any Default;
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65
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Company and its Subsidiaries in
an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business, except, in the case of any Subsidiaries not
party to any Loan Document, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its Debt (and other obligations,
including Tax liabilities, that, if not paid, could result in a Material Adverse
Effect) before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not
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reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, in good working order and condition, ordinary
wear and tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its material Subsidiaries to, keep proper
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities. The
Company will, and will cause each of its material Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will
be used only for the purposes set forth in the preamble to this Agreement. No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X.
SECTION 5.09. Guarantors. Upon the request of the
Administrative Agent, the Company will promptly cause each Subsidiary that shall
not be a Guarantor hereunder (other
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than any Foreign Subsidiary or Subsidiary with no significant assets or
operations) to execute and deliver to the Administrative Agent an instrument
satisfactory in form and substance to the Administrative Agent under which it
shall undertake the obligations of a Guarantor, together with such evidence as
the Administrative Agent may reasonably request as to the corporate power and
authority of such Subsidiary to become and perform the obligations of a
Guarantor hereunder.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Company and each Borrowing Subsidiary covenants and agrees
with the Lenders that:
SECTION 6.01. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien (other than Liens described in paragraphs (a),
(c) or (d) of this Section) on any property or asset of the Company or
any Subsidiary existing on the date hereof and set forth in Schedule
6.01; provided that (i) such Lien shall not apply to any other property
or asset of the Company or any Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in
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contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Company or any Subsidiary
and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes
a Subsidiary, as the case may be;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (ii) the Debt secured thereby does
not exceed 80% of the cost of acquiring, constructing or improving such
fixed or capital assets and (iii) such security interests shall not
apply to any other property or assets of the Company or any Subsidiary;
and
(e) extensions, renewals and replacements of Liens described
in paragraphs (c) and (d), provided that such extensions, renewals and
replacements do not increase the outstanding principal amount of the
Debt secured thereby.
SECTION 6.02. Sale and Leaseback Transactions. The Company
will not, and will not permit any Subsidiary to, enter into, directly or
indirectly, any sale and leaseback transaction with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.
SECTION 6.03. Fundamental Changes. (a) The Company will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) assets (including capital stock of Subsidiaries) constituting
all or substantially all the assets of the Company and the Subsidiaries on a
consolidated basis (whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect
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thereto no Default shall have occurred and be continuing (i) any Subsidiary may
merge into the Company in a transaction in which the Company is the surviving
corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction
in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Company or to another
Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the Company
determines in good faith that such liquidation or dissolution is in the best
interests of the Company and is not materially disadvantageous to the Lenders
and (v) the Company may dispose of one or more Subsidiaries not constituting all
or substantially all the consolidated assets of the Company and the Subsidiaries
on a consolidated basis by causing such Subsidiary or Subsidiaries to be merged
with or into or otherwise acquired by any other person.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
hereof and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements. (a) The Company will not, and will not permit
any of its Subsidiaries to, purchase, hold or acquire any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, except:
(i) Permitted Investments;
(ii) investments by the Company in the capital stock of
Subsidiaries or persons that, by virtue of such investments, become
Subsidiaries; provided, however, that each such investment is approved
by the board of directors of the acquired company before the Company
acquires more than (i) in the case of a publicly held company, 5% of
the capital stock of the acquired company, or (ii) in the case of a
privately held company, 25% of the capital stock of the acquired
company, or commences any tender offer or proxy soliciation;
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(iii) loans or advances made by the Company to any Subsidiary
or made by any Subsidiary to the Company or any Subsidiary;
(iv) Guarantees constituting Debt permitted hereunder; and
(v) investments by the Company in the capital stock of any
Person or options or warrants relating thereto, in an amount not to
exceed $25,000,000 in the aggregate.
(b) The Company will not, and will not permit any of its
Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements
entered into in the ordinary course of business to hedge or mitigate risks to
which the Company or any Subsidiary is exposed in the conduct of its business or
the management of its liabilities.
SECTION 6.05. Transactions with Affiliates. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) as set forth on Schedule 6.05, (b) in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Company or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (c) transactions between or among the Company and
its wholly owned Subsidiaries not involving any other Affiliate and (d) any
payment on account of capital stock that is otherwise permitted by this
Agreement.
SECTION 6.06. Restrictive Agreements. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Company or any other
Subsidiary or to Guarantee Debt of the Company or any other Subsidiary; provided
that the foregoing shall not apply to restrictions and conditions imposed by law
or by this Agreement.
SECTION 6.07. Subsidiary Debt. The Subsidiaries will not issue
or permit to be outstanding any preferred
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71
stock and will not create, incur, assume or permit to exist any Debt except (a)
Debt created hereunder and under the Alternative Currency Addenda and (b) other
Debt in an aggregate principal amount outstanding at any time for all
Subsidiaries not in excess of the greater of $100,000,000 and Consolidated
EBITDA for the period of four consecutive fiscal quarters most recently ended.
SECTION 6.08. Consolidated Leverage Ratio. The Consolidated
Leverage Ratio will not at any time on or after September 30, 1996 exceed 3.25
to 1.0.
SECTION 6.09. Consolidated Interest Coverage Ratio. The
Consolidated Interest Coverage Ratio will not at any time be less than (a) at
any time on or after September 30, 1996 and prior to September 30, 1998, 2.5 to
1.0 or (b) at any time on or after September 30, 1998, 3.0 to 1.0.
SECTION 6.10. Consolidated Net Worth. Permit Consolidated Net
Worth at any time on or after September 30, 1996 to be less than the sum of (a)
$225,000,000 and (b) one-half of Consolidated Net Income for each fiscal year
ended prior to such date for which Consolidated Net Income is positive,
beginning with the fiscal year ending December 31, 1996.
ARTICLE VII
DEFAULTS
If any of the following events ("Events of Default") shall
occur:
(a) any representation or warranty made or deemed made by or
on behalf of the Company or any Subsidiary in or in connection with any
Loan Document, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan
Document, shall prove to have been incorrect in any material respect
when made or deemed made;
(b) any Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
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(c) any Borrower shall fail to pay any interest on any Loan or
any Fee or any other amount (other than an amount referred to in clause
(b) above) payable under any Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for
a period of three Business Days;
(d) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02,
Section 5.03 (with respect to any Borrower's existence) or Section 5.08
or in Article VI;
(e) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (b), (c) or (d) above),
and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Company;
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest) in respect of any Material
Debt, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Debt becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Debt or any trustee or
agent on its or their behalf to cause any Material Debt to become due,
or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Subsidiary or for a substantial
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part of its assets; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) the Company or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Company or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the
Company, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor or creditors to attach or levy
upon any assets of the Company or any Subsidiary to enforce any such
judgment or judgments in excess of such amount;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Company and its Subsidiaries in an aggregate amount exceeding
(i) $5,000,000 in any year or (ii) $10,000,000 for all periods; or
(m) a Change in Control shall occur;
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then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other liabilities of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any
event with respect to any Borrower described in clause (h) or (i) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
liabilities of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
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The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing (a) the Administrative Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information communicated to the Administrative Agent by or relating to the
Company or any of its Subsidiaries. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or wilful
misconduct. In addition, the Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Company or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it in good faith to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it in good faith to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
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76
Company), independent accountants and other experts selected by it with
reasonable care, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Affiliates. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Affiliates of the
Administrative Agent and any such sub-agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Company. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall 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. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 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 Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance
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upon the Administrative Agent or any other Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
ARTICLE IX
GUARANTEE
In order to induce the Lenders to extend credit hereunder,
each Guarantor hereby unconditionally guarantees, as a primary obligor and not
merely as a surety, jointly with the other Guarantors and severally, the
Obligations. Each Guarantor further agrees that the Obligations may be extended
or renewed, in whole or in part, without notice to or further assent from it,
and that it will remain bound upon its Guarantee hereunder notwithstanding any
such extension or renewal of any Obligation.
Each Guarantor waives presentment to, demand of payment from
and protest to any Borrower of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Guarantors hereunder shall not be affected by the failure of
any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against any Borrower under the provisions of this
Agreement or any of the other Loan Documents or otherwise, or, except as
specifically provided therein, by any rescission, waiver, amendment or
modification of any of the terms or provisions of this Agreement, any of the
other Loan Documents or any other agreement.
Each Guarantor further agrees that its Guarantee hereunder
constitutes a promise of payment when due and not merely of collection, and
waives any right to require that any resort be had by any Lender to any balance
of any deposit account or credit on the books of any Lender in favor of any
Borrower or any other person.
The obligations of the Guarantors hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination
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whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Guarantors hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Administrative Agent or any Lender to assert any
claim or demand or to enforce any remedy under this Agreement or under any other
Loan Document or any other agreement, by any waiver or modification in respect
of any thereof, by any default, failure or delay, wilful or otherwise, except as
specifically provided therein, in the performance of the Obligations, by any
release of any other Guarantor, or by any other act or omission which may or
might in any manner or to any extent vary the risk of any Guarantor or otherwise
operate as a discharge of any Guarantor as a matter of law or equity.
Each Guarantor further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Obligation
is rescinded or must otherwise be restored by the Administrative Agent or any
Lender upon the bankruptcy or reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which the Administrative Agent or any Lender may have at law or in
equity against the Guarantors by virtue hereof, upon the failure of any Borrower
to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. The Guarantors further agree, jointly and severally,
that if payment in respect of any Obligation owed to any Lender shall be due in
a currency other than Dollars and/or at a place of payment other than New York
and if, by reason of any Change in Law, disruption of currency or foreign
exchange markets, war or civil disturbance or other event, payment of such
Obligation in such currency or such place of payment shall be impossible or, in
the judgment of such Lender, not consistent with the protection of its rights or
interests, then, at the election of such Lender, the Guarantors shall make
payment of such Obligation in Dollars (based upon the applicable Exchange Rate
in effect on the date of payment) and/or in New York,
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and shall indemnify such Lender against any losses or expenses that it shall
sustain as a result of such alternative payment.
Upon payment by the Guarantors of any Obligations, each Lender
shall, in a reasonable manner, assign the amount of the Obligations owed to it
and so paid to the applicable Guarantors, such assignment to be pro tanto to the
extent to which the Obligations in question were discharged by the Guarantors,
or make such disposition thereof as the applicable Guarantors shall direct (all
without recourse to and without any representation or warranty by any Lender).
Upon payment by any Guarantor of any sums as provided above,
all rights of such Guarantor against any Borrower arising as a result thereof by
way of right of subrogation or otherwise shall in all respects be subordinated
and junior in right of payment to the prior indefeasible payment in full of all
the Obligations.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at 2150 East Lake Cook Road,
Suite 230, Buffalo Grove, IL 60089-1877, Attention of Frank Leonard
(Telecopy No. (847) 808-7030);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, N.A., Agent Bank Services Group, Grand Central Tower, 140 East
45th Street, New York, New York 10017, Attention of Jesus Sang
(Telecopy No. (212) 622- 0122), with a copy to Chase Securities Inc.,
10 South LaSalle Street, Suite 2300, Chicago, IL 60603, Attention of
Jon Hinard (Telecopy No. (312) 443-1964);
(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire; and
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(d) if to any Borrowing Subsidiary, to it at the address (or
telecopy number) set forth above for the Company.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given.
(b) None of this Agreement, any Alternate Currency Addendum
nor any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into (i) in the case
of this Agreement by the Borrowers and the Required Lenders or by the Borrowers
and the Administrative Agent with the consent of the Required Lenders and (ii)
in the case of any Alternate Currency Addendum, by the applicable Borrowers and
the Lenders party to such Addendum; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, or increase or decrease any Alternate Currency Lender Maximum Borrowing
Amount of any Alternate Currency Lender without the written consent of such
Alternate Currency 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 affected thereby, (iii) postpone the
scheduled date of payment or prepayment of the principal amount of any Loan, or
any interest thereon, or any
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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 affected thereby, (iv) change Section 2.16 in
a manner that would alter the pro rata sharing of any payment without the
written consent of each Lender affected thereby, (v) reduce or terminate the
obligations of any Guarantor under Article IX, except in connection with any
merger, sale or other disposition of such Guarantor permitted by Section 6.03 or
(vi) change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required in order to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrowers agree, jointly and severally, to pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement or in connection with the Loans made hereunder.
(b) The Borrowers agree, jointly and severally, to indemnify
the Administrative Agent and each Lender, each Affiliate of any of the foregoing
Persons and each of their respective directors, officers, employees, advisors,
agents and controlling persons (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by
<PAGE>
82
or asserted against any Indemnitee arising out of, in connection with the credit
extended hereunder, the use thereof by the Company or any of its Subsidiaries,
any breach by any Borrower of this Agreement or any Alternate Currency Addendum
or any claim, litigation, investigation or proceeding (whether or not any
Indemnitee is a party thereto) relating to this Agreement or any agreement or
instrument contemplated hereby, the consummation of the Transactions or any
other transactions contemplated hereby or any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Company or any of its Subsidiaries or Environmental Liability related in any way
to the Company or any of its Subsidiaries; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction to have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to the Administrative Agent, under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to the Administrative
Agent such Lender's Pro Rata Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, each Borrower
agrees not to assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with or as a result of this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds
therefrom.
(d) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby and the
Indemnitees,
<PAGE>
83
except that no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void). Any merger or consolidation of the Company or any Borrowing
Subsidiary permitted by Section 6.03(a) shall be deemed not to be an assignment
in violation of this Section 10.04. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto and their respective successors and assigns permitted hereby and the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Company and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause shall not apply to rights in respect of outstanding Competitive Loans,
(iv) the parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the
<PAGE>
84
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 10.03).
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in The City of New
York 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 Borrowers, 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.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and any written consent to such assignment required by paragraph (b)
above, the Administrative Agent shall (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Lenders. No assignment shall be effective unless it
has been recorded in the Register as provided in this paragraph (d).
(e) Any Lender may without the consent of any Borrower or the
Administrative Agent sell participations to one or more banks or other entities
("Participants") in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agent and the other
<PAGE>
85
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) below, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14, 2.15 and 2.19 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with paragraph (b) above shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with this paragraph.
(f) A Participant or Assignee shall not be entitled to receive
any greater payment under Section 2.13 or 2.19 than the transferring Lender
would have been entitled to receive with respect to the participation sold to
such Participant or Assignment transferred to such Assignee, unless the sale of
the participation to such Participant or transfer to such Assignee is made with
the Company's prior written consent. An Assignee that is a Foreign Lender, or a
Participant that would be a Foreign Lender if it were a Lender, shall not be
entitled to the benefits of Section 2.19 unless the Company is notified of the
assignment or of the participation sold to such Participant and such Assignee or
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.19(e) as though it were the Lender signing this Agreement from which the
interest assigned (or in which the participation is sold) devolves.
(g) Any Lender may at any time assign all or any portion of
its rights under this Agreement to a Federal Reserve Bank to secure extensions
of credit by such Federal Reserve Bank to such Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such Federal Reserve Bank for such Lender as a party hereto.
<PAGE>
86
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.13.
2.15, 2.19 and 10.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans and the Commitments or the termination of this
Agreement or any other provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
(including each Alternate Currency Addendum in effect from time to time) and any
separate letter agreements with respect to Fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 3.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
<PAGE>
87
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrowers against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court for the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement
<PAGE>
88
shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement against any
Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents,
<PAGE>
89
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent otherwise required by applicable laws and regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e)
in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section executed prior to the disclosure of any Information, to
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of the Company or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than any Borrower. For the purposes of this Section,
"Information" means all information received from the Borrowers relating to any
Borrower or its business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Borrower; provided that, in the case of information received
from the Borrowers after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.13. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
<PAGE>
90
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.13 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By /s/ John J. McKiernan
__________________________________________
Name: John J. McKiernan
Title: Vice President-Finance and
Administration, Chief Financial
Officer and Secretary
Guarantors
----------
KELLY PAPER COMPANY
By /s/ Edward A. Pearson
__________________________________________
Name: Edward A. Pearson
Title: President
<PAGE>
91
BT MONROE OFFICE PRODUCTS, INC.
By /s/ Steve Frager
__________________________________________
Name: Steve Frager
Title: President, New England Division
BT OPI
BUSINESS ESSENTIALS, INC. (Minneapolis)
By /s/ Sharon Re
__________________________________________
Name: Sharon Re
Title: President
CROWN OFFICE PRODUCTS, INC.
By /s/ Karen Kendrick
__________________________________________
Name: Karen Kendrick
Title: Vice President and Treasurer
GENERAL OFFICE SUPPLY COMPANY, INC.
By /s/ Terry Palmer
__________________________________________
Name: Terry Palmer
Title: President
MITCHELL-DIXON OFFICE SUPPLY COMPANY
By /s/ Karen Kendrick
__________________________________________
Name: Karen Kendrick
Title: Vice President and Treasurer
TOTAL OFFICE PRODUCTS & PRINTERS, INC.
By /s/ Paul Zimmerman
__________________________________________
Name: Paul Zimmerman
Title: President
<PAGE>
92
BUSINESS ESSENTIALS, INC.
(St. Louis)
By /s/ Richard C. Dubin
__________________________________________
Name: Richard C. Dubin
Title: Vice President
APOLLO STATIONERS, INC.
By /s/ Steve Stadell
__________________________________________
Name: Steve Stadell
Title: Vice President
BT OFFICE PRODUCTS INTERNATIONAL
HOLDINGS, INC.
By /s/ John J. McKiernan
__________________________________________
Name: John J. McKiernan
Title: Vice President, Treasurer and
Secretary
BT OPE HOLDINGS, INC.
By /s/ John J. McKiernan
__________________________________________
Name: John J. McKiernan
Title: Vice President, Treasurer and
Secretary
THE CHASE MANHATTAN BANK,
individually and
as Administrative Agent
By /s/ D. Davey
__________________________________________
Name: D. Davey
Title: Vice President
<PAGE>
93
ABN AMRO BANK N.V., individually and as
Documentation Agent
By /s/ Laurie D. Flom
__________________________________________
Name: Laurie D. Flom
Title: Vice President
By /s/ John E. Robertson
__________________________________________
Name: John E. Robertson
Title: Vice President
BANK OF AMERICA
By /s/ Joseph T. Koch
__________________________________________
Name: Joseph T. Koch
Title: Senior Vice President
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By /s/ A. Blodi
__________________________________________
Name: A. Blodi
Title: AVP
By /s/ Carolyn Gutbrod
__________________________________________
Name: Carolyn Gutbrod
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Susan L. Comstock
__________________________________________
Name: Susan L. Comstock
Title: Vice President
THE FUJI BANK LIMITED
By /s/ Hideksau Seo
__________________________________________
Name: Hideksau Seo
Title: Joint General Manager
<PAGE>
94
MELLON BANK
By /s/ Irene A. Burczynski
__________________________________________
Name: Irene A. Burczynski
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Minoru Wada
__________________________________________
Name: Minoru Wada
Title: Deputy General Manager
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xavier Roux
__________________________________________
Name: Xavier Roax
Title: First Vice President
FIRST NATIONAL BANK OF MARYLAND
By /s/ John A. Emens
__________________________________________
Name: John A. Emens
Title: Senior Vice President
NORTHERN TRUST COMPANY
By /s/ Michelle M. Teteak
__________________________________________
Name: Michelle M. Teteak
Title: Vice President
<PAGE>
EXHIBIT A
ADMINISTRATIVE QUESTIONNAIRE
BT Office Products International, Inc.
Administrative Questionnaire
Please accurately complete all the following information and return via FAX to
the attention of Jesus Sang at The Chase Manhattan Bank (telecopy: (212)
622-0122) as soon as possible.
Fax Number:
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
- ----------------------------------------------------------
________________________________________________________________________________
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
- ----------------------------------------------
Institution Name: _____________________________________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
- ------------------------------------------------
Institution Name: _____________________________________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
CONTACTS/NOTIFICATION METHODS:
- ------------------------------
CREDIT CONTACTS:
Primary Contact: _____________________________________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
Phone Number: _____________________________________________________
<PAGE>
2
FAX Number: _____________________________________________________
Backup Contact: _____________________________________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
Phone Number: _____________________________________________________
FAX Number: _____________________________________________________
TAX WITHHOLDING:
- ----------------
Non Resident Alien _____________________Y* ____________________N
* If yes, please attach Form 4224 or 1001.
Tax ID Number _____________________________________________________
CONTACTS/NOTIFICATION METHODS:
- ------------------------------
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact: _____________________________________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
Phone Number: _____________________________________________________
FAX Number: _____________________________________________________
PAYMENT INSTRUCTIONS:
- ---------------------
Name of Bank where funds are to be transferred:
___________________________________________________________________________
Routing Transit/ABA number of Bank where funds are to be transferred:
___________________________________________________________________________
<PAGE>
3
Name of Account, if applicable:
- -------------------------------
____________________________________________________________________________
Account Number: _____________________________________________________
Additional Information: _____________________________________________________
MAILINGS:
- ---------
Please specify who should receive financial information:
Name: _____________________________________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
<PAGE>
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Dated: _________, 19__
Reference is made to the $250,000,000 Competitive Advance and Revolving
Credit Facility Agreement dated as of August 2, 1996 (the "Agreement"), among BT
Office Products International, Inc. (the "Company"), the Borrowing Subsidiaries,
the lenders listed in Schedule 2.01 thereto (the "Lenders"), The Chase Manhattan
Bank, as Administrative Agent for the Lenders, and ABN AMRO Bank N.V., as
Documentation Agent. Terms defined in the Agreement are used herein with the
same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the effective date of assignment set forth below
(the "Assignment Date"), the interests set forth on the reverse hereof (the
"Assigned Interest") in the Assignor's rights and obligations under the
Agreement, including, without limitation, the interests set forth on the reverse
hereof in the Commitment of the Assignor on the Assignment Date and the
Competitive Loans, Standby Loans and Alternate Currency Loans owing to the
Assignor which are outstanding on the Assignment Date, together with unpaid
interest accrued on the assigned Loans to the Assignment Date and the amount, if
any, set forth on the reverse hereof of the Fees accrued to the Assignment Date
for the account of the Assignor. Each of the Assignor and the Assignee hereby
makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 10.04 of the Agreement, a copy of which has been
received by each such party. From and after the Assignment Date, (i) the
Assignee shall be a party to and be bound by the provisions of the Agreement
and, to the extent of the interests assigned by this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder, and (ii) the Assignor
shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms referenced in
Section 2.19(e) of the Agreement, duly completed and executed by such Assignee,
(ii) if the Assignee is not already a Lender under the Agreement, an
Administrative Questionnaire in the form of Exhibit A to the Agreement and (iii)
a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the law of the State of New York.
Date of Assignment: ____________________________________________________________
Legal Name of Assignor: ________________________________________________________
Legal Name of Assignee: ________________________________________________________
Assignee's Address for Notices: ________________________________________________
Assignee's Domestic Lending Office Address:_____________________________________
________________________________________________________________________________
<PAGE>
Assignee's Eurocurrency Lending Office Address:_________________________________
________________________________________________________________________________
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment): ____________________________________________
================================================================================
Percentage Assigned of
Facility/Commitment
(set forth, to at least
Principal Amount 8 decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
- --------------------------------------------------------------------------------
Commitment Assigned: $__________ _________ %
- --------------------------------------------------------------------------------
Standby Loans: $__________ _________ %
- --------------------------------------------------------------------------------
Competitive Loans: $__________ _________ %
- --------------------------------------------------------------------------------
Alternate Currency
Loans: $__________ _________ %
- --------------------------------------------------------------------------------
Fees Assigned (if any): $__________ _________ %
================================================================================
The terms set forth and on the Accepted (if required):
reverse side hereof are hereby BT OFFICE PRODUCTS INTERNATIONAL,
agreed to: INC.,
________________________________, by: _______________________________
as Assignor, Name:
Title:
by: ____________________________
Name:
Title:
________________________________,
as Assignee,
by: ____________________________
Name:
Title:
<PAGE>
EXHIBIT C
[FORM OF]
BORROWING SUBSIDIARY AGREEMENT
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
140 East 45th Street
New York, NY 10017
Attention: Jesus Sang
[Date]
Ladies and Gentlemen:
The undersigned, BT Office Products International, Inc. (the
"Company"), refers to the $250,000,000 Competitive Advance and Revolving Credit
Facility Agreement dated as of August 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Agreement"), among the
Company, the Subsidiaries named therein, the Guarantors named therein and the
Lenders named therein, The Chase Manhattan Bank, as Administrative Agent, and
ABN AMRO Bank N.V., as Documentation Agent. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
The Company and (the "Designated Borrowing Subsidiary")
(i) confirm that the Designated Borrowing Subsidiary is a Subsidiary and (ii)
make, on and as of the date hereof, the representations and warranties as to the
Designated Borrowing Subsidiary contained in Article IV of the Credit Agreement.
The Designated Borrowing Subsidiary hereby agrees to be bound in all respects by
the terms of the Agreement, including without limitation, Articles III and VIII
thereof, and to perform all of the obligations of a Borrowing Subsidiary
thereunder. Each reference to a Borrowing Subsidiary in the Agreement shall be
deemed to include the Designated Borrowing Subsidiary.
The Company hereby ratifies and confirms the provisions of Article VIII
of the Agreement with respect to all Loans made by any Lender to the Designated
Borrowing Subsidiary.
The address to which communications to the Designated Borrowing
Subsidiary under the Agreement should be directed
is:_____________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
This instrument shall be construed in accordance with and governed by
the law of the State of New York. Loan proceeds should be deposited as provided
in the Agreement.
Upon the execution of this Borrowing Subsidiary Agreement by the
Company and the Designated Borrowing Subsidiary, and acceptance hereof by the
Administrative Agent, the Designated Borrowing Subsidiary shall become a
Borrowing Subsidiary under the Agreement as though it were an
<PAGE>
2
original party thereto and shall be entitled to borrow under the Agreement upon
the satisfaction of the conditions precedent set forth in Section 3.02 of the
Agreement.
Very truly yours,
BT OFFICE PRODUCTS INTERNATIONAL, INC.,
by
___________________________________
Name:
Title:
[DESIGNATED BORROWING SUBSIDIARY],
by
___________________________________
Name:
Title:
Accepted as of the date first above written.
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
______________________________
Name:
Title:
<PAGE>
EXHIBIT D
[FORM OF]
BORROWING SUBSIDIARY TERMINATION
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
140 East 45th Street
New York, NY 10017
Attention: Jesus Sang
with a copy to:
The Chase Manhattan Bank, as Administrative Agent
c/o Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, IL 60603
Attention: Jon Hinard
[Date]
Ladies and Gentlemen:
The undersigned, BT Office Products International, Inc. (the
"Company"), refers to the $250,000,000 Competitive Advance and Revolving Credit
Facility Agreement dated as of August 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Agreement"), among the
Company, the Subsidiaries named therein, the Guarantors named therein, the
Lenders named therein, The Chase Manhattan Bank, as Administrative Agent, and
ABN AMRO Bank N.V., as Documentation Agent. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
The Company hereby elects to terminate the status of (the
"Terminated Borrowing Subsidiary") as a Borrowing Subsidiary for purposes of the
Agreement. The Company represents and warrants that no Loans made to the
Terminated Borrowing Subsidiary are outstanding as of the date hereof and that
all principal and interest on all amounts payable by the Terminated Borrowing
Subsidiary pursuant to the Agreement and any Alternate Currency Addendum have
been paid in full on or prior to the date hereof.
<PAGE>
4
This instrument shall be construed in accordance with and governed by
the law of the State of New York.
Very truly yours,
BT OFFICE PRODUCTS INTERNATIONAL,
INC.,
by
_________________________________________
Name:
Title:
<PAGE>
EXHIBIT E-1
[FORM OF]
COMPETITIVE BID REQUEST
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
140 East 45th Street
New York, NY 10017
Attention: Jesus Sang
with a copy to:
The Chase Manhattan Bank, as Administrative Agent
c/o Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, IL 60603
Attention: Jon Hinard
[Date]
Ladies and Gentlemen:
The undersigned, BT Office Products International, Inc. (the
"Company"), refers to the $250,000,000 Competitive Advance and Revolving Credit
Facility Agreement dated as of August 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Agreement"), among the
Company, the Subsidiaries named therein, the Guarantors named therein and the
Lenders named therein, The Chase Manhattan Bank, as Administrative Agent, and
ABN AMRO Bank N.V., as Documentation Agent. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
The Company hereby gives you notice pursuant to Section 2.03(a) of the
Agreement that it requests a Competitive Borrowing under the Agreement, and in
that connection sets forth below the terms on which such Competitive Borrowing
is requested to be made:
(A) Date of Competitive Borrowing
(which is a Business Day) _________________________
(B) Principal amount of
Competitive Borrowing1 _________________________
(C) Interest rate basis2 _________________________
(D) Maturity of Competitive
Borrowing _________________________
(E) Interest Period and the
last day thereof3 _________________________
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Company shall be deemed to have
- --------------
1 Not less than $5,000,000 (and in integral multiples of $1,000,000) or greater
than the Total Commitment then available.
2 Eurocurrency Loan or Fixed Rate Loan.
3 Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
<PAGE>
2
represented and warranted that the conditions to lending specified in Section
3.02(b) and (c) of the Agreement have been satisfied. Any amounts borrowed shall
be deposited in Chase account number [ ].
Very truly yours,
BT OFFICE PRODUCTS INTERNATIONAL, INC.,
by
___________________________________
Name:
Title: [Financial Officer]
<PAGE>
EXHIBIT E-2
[FORM OF]
NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
[Date]
Attention: [ ]
Ladies and Gentlemen:
Reference is made to the $250,000,000 Competitive Advance and Revolving
Credit Facility Agreement dated as of August 2, 1996 (as it may hereafter be
amended, modified, extended or restated from time to time, the "Agreement"),
among BT Office Products International, Inc. (the "Company"), the Borrowing
Subsidiaries, the Lenders named therein, The Chase Manhattan Bank, as
Administrative Agent, and ABN AMRO Bank N.V., as Documentation Agent.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement.
A Borrower made a Competitive Bid Request on , 19[ ], pursuant to
Section 2.03(a) of the Agreement, and in that connection you are invited to
submit a Competitive Bid by [Date]/[Time].1Your Competitive Bid must comply with
Section 2.03(b) of the Agreement and the terms set forth below on which the
Competitive Bid Request was made:
(A) Date of Competitive Borrowing ____________________
(B) Principal amount of
Competitive Borrowing ____________________
(C) Interest rate basis ____________________
(D) Maturity of Competitive
Borrowing ____________________
(E) Interest Period and the
last day thereof ____________________
Very truly yours,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
___________________________________
Name:
Title:
- --------------
1 The Competitive Bid must be received by the Agent (i) in the case of
Eurocurrency Competitive Loans, not later than 9:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (ii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
Business Day of a proposed Competitive Borrowing.
<PAGE>
EXHIBIT E-3
[FORM OF]
COMPETITIVE BID
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
140 East 45th Street
New York, NY 10017
Attention: Jesus Sang
with a copy to:
The Chase Manhattan Bank, N.A,, as Administrative Agent
c/o Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, IL 60603
Attention: Jon Hinard
[Date]
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the $250,000,000
Competitive Advance and Revolving Credit Facility Agreement dated as of August
2, 1996 (as it may hereafter be amended, modified, extended or restated from
time to time, the "Agreement"), among BT Office Products International, Inc.
(the "Company"), the Subsidiaries named therein, the Guarantors named therein
and the Lenders named therein, The Chase Manhattan Bank, as Administrative
Agent, and ABN AMRO Bank N.V., as Documentation Agent. Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section
2.03(b) of the Agreement, in response to the Competitive Bid Request made by the
Company on________ , 19[ ], and in that connection sets forth below the terms on
which such Competitive Bid is made:
(A) Principal Amount1 ____________________
(B) Competitive Bid Rate2 ____________________
(C) Maturity of Borrowing ____________________
(D) Interest Period and last
day thereof ____________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Agreement, to extend credit to the
- --------------
1 Not less than $5,000,000 or greater than the requested Competitive Borrowing
and in integral multiples of $1,000,000. Multiple bids will be accepted by the
Agent.
2 i.e., LIBO Rate + or - %, in the case of Eurocurrency Competitive Loans or
%, in the case of Fixed Rate Loans.
<PAGE>
2
Borrower upon acceptance by such Borrower of this bid in accordance with Section
2.03(d) of the Agreement.
Very truly yours,
[NAME OF LENDER],
by
___________________________________
Name:
Title:
<PAGE>
EXHIBIT E-4
[FORM OF]
COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
140 East 45th Street
New York, NY 10017
Attention: Jesus Sang
with a copy to:
The Chase Manhattan Bank, as Administrative Agent
c/o Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, IL 60603
Attention: Jon Hinard
Ladies and Gentlemen:
The undersigned, BT Office Products International, Inc. (the
"Company"), refers to the $250,000,000 Competitive Advance and Revolving Credit
Facility Agreement dated as of August 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Agreement"), among the
Company, the Subsidiaries named therein, the Guarantors named therein and the
Lenders named therein, The Chase Manhattan Bank, as Administrative Agent for the
Lenders, and ABN AMRO Bank N.V., as Documentation Agent. Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Agreement.
In accordance with Section 2.03(c) of the Agreement, we have received a
summary of bids in connection with our Competitive Bid Request dated __________,
19[ ], and in accordance with Section 2.03(d) of the Agreement, we hereby accept
the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Interest Rate Basis Lender
- ---------------- ----------------- ------------------- ------
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Interest Rate Basis Lender
- ---------------- ----------------- ------------------- ------
$ [%]/[+/-. %]
$
<PAGE>
2
The $________ should be deposited in Chase account number [ ]
on [date].
Very truly yours,
BT OFFICE PRODUCTS INTERNATIONAL, INC.,
by
_________________________________
Name:
Title:
<PAGE>
EXHIBIT E-5
[FORM OF]
STANDBY BORROWING REQUEST
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
Attention: Jesus Sang
140 East 45th Street
New York, NY 10017
with a copy to:
The Chase Manhattan Bank, as Administrative Agent
c/o Chase Securities Inc.
Attention: Jon Hinard
Ten South LaSalle Street
Suite 2300
Chicago, IL 60603
[Date]
Ladies and Gentlemen:
The undersigned, BT Office Products International, Inc. (the
"Company"), refers to the $250,000,000 Competitive Advance and Revolving Credit
Facility Agreement dated as of August 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, (the "Agreement"), among the
Company, the Subsidiaries, Guarantors and Lenders named therein, The Chase
Manhattan Bank, as Administrative Agent, and ABN AMRO Bank N.V., as
Documentation Agent. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Agreement.
The undersigned borrower hereby gives you notice pursuant to Section
2.04 of the Agreement that it requests a Standby Borrowing under the Agreement,
and in that connection sets forth below the terms on which such Standby
Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day) ____________________
(B) Denomination of Standby
Borrowing ____________________
(C) Principal amount of
Standby Borrowing ____________________
(D) Interest rate basis ____________________
(E) Maturity of Standby
Borrowing ____________________
<PAGE>
2
(F) Interest Period and the
last day thereof ____________________
Upon acceptance of any or all of the Loans made by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 3.02(b) and (c) of
the Agreement have been satisfied. Wire loan proceeds to First National Bank
of Maryland, ABA 052000113, for credit to BT Office Products International,
A/C #171-9405-9.
Very truly yours,
BT OFFICE PRODUCTS INTERNATIONAL, INC.
by
___________________________________
Name:
Title:
<PAGE>
EXHIBIT F
[FORM OF]
OPINION OF WINTHROP, STIMSON, PUTNAM & ROBERTS
COUNSEL FOR BT OFFICE PRODUCTS INTERNATIONAL, INC.
August 2, 1996
To: The Chase Manhattan Bank, as Administrative Agent
(the "Administrative Agent"), ABN AMRO Bank N.V.,
as Documentation Agent (the "Documentation Agent"),
and each of the lenders (the "Lenders") party to
the Competitive Advance and Revolving Credit
Facility Agreement dated as of August 2, 1996 (the
"Agreement"), among BT Office Products
International, Inc., the Borrowing Subsidiaries (as
defined in the Agreement), the Guarantors (as
defined in the Agreement), the Lenders, the
Administrative Agent and the Documentation Agent
Ladies and Gentlemen:
We have acted as counsel to BT Office Products International,
Inc., a Delaware corporation (the "Company"), in connection with the
negotiation, preparation, execution and delivery of the Agreement and the
transactions contemplated by the Agreement. This opinion is being furnished to
you pursuant to Section 3.01(a)(ii) of the Agreement. Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to such terms in
the Agreement.
In so acting, we have examined originals or copies certified
or otherwise identified to our satisfaction of the Agreement as well as
original, certified, conformed or reproduction copies of all other records,
agreements, instruments and documents which we have deemed relevant or necessary
as the basis for the opinion hereinafter expressed. In stating our opinion, we
have assumed the genuineness of all signatures (other than the signature of the
Company on the Agreement), the legal capacity of all natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or reproduction
copies.
<PAGE>
The Chase Manhattan Bank, -2- August 2, 1996
et al.
We have also assumed, for purposes of the opinion expressed
herein, that the parties to the Agreement other than the Company have the
corporate power and authority to enter into and perform the Agreement and that
the Agreement has been duly authorized, executed and delivered by each such
other party and constitutes the legal, valid and binding agreement of each such
other party enforceable against it in accordance with its terms (subject to the
same qualifications contained in subparagraph (b) below on pages 2-3 of this
opinion letter).
We have not been in a position to be advised continually of
all material facts which might be relevant to the opinion expressed herein, and,
accordingly, as to various matters of fact material to our opinion, we have
relied specifically upon the representations and warranties in the Agreement,
statements and certificates of officers of the Company, public officials and
other appropriate persons, and our actual knowledge obtained during the course
of our representation.
Whenever our opinion is qualified by the phrase "to the best
of our knowledge," such phrase indicates that, as to factual matters, our
opinion is based upon the representations and warranties made in the Agreement
and the actual knowledge of relevant facts obtained by any of this firm's
lawyers involved in the preparation of the Agreement during the course of our
representation. We have not undertaken any independent investigation to
determine the existence or absence of any facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from the
fact of our representation of the Company.
The opinion set forth below is subject to the following
additional limitations, qualifications, assumptions and exceptions:
(a) we have assumed that the Lenders and
all Persons (other than the Company) will act under
the Agreement in good faith and in a commercially
reasonable manner;
(b) the validity, binding effect and enforceability
of the Agreement may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws now or
hereafter in effect affecting creditors' rights generally, and (ii)
general principles of
<PAGE>
The Chase Manhattan Bank, -3- August 2, 1996
et al.
equity (regardless of whether considered in a proceeding in equity or
in law); in particular, and without limiting the foregoing, this
opinion is subject to, and no opinion is expressed as to, the effect of
any applicable fraudulent conveyance, fraudulent transfer or fraudulent
obligations law (including, but not limited to, the effect of any such
law on the Agreement, any of the transactions contemplated thereby or
any of the rights of the Lenders thereunder);
(c) law or public policy may limit the
right of any Person to obtain indemnification, but
the inclusion of a right to indemnification will
not render the Agreement unenforceable;
(d) limitations arising from certain holdings and
decisions of federal and state courts involving statutes or public
policy to the effect that (i)(A) certain covenants and provisions of
financing agreements, including those allowing for acceleration of
indebtedness upon the occurrence of certain events, may be
unenforceable where such covenants or provisions are found to be
unconscionable or to impose restrictions or obligations on the debtor
and it cannot be demonstrated that the enforcement of such restrictions
or obligations upon the occurrence of such events is reasonably
necessary for the protection of the creditor, (B) certain common law
remedies may be unenforceable under certain circumstances, and (C)
provisions which purport to establish evidentiary standards or waive
non- waivable statutory rights may be unenforceable, but the
limitations expressed in the preceding clauses (A), (B) and (C) should
not render the Agreement unenforceable and the unenforceability of any
such particular provisions in the Agreement should not materially
impair the practical realization of the benefits created by the
Agreement taken as a whole, and (ii) under certain circumstances,
provisions declaring that the failure to exercise or the delay in
exercising rights or remedies will not operate as a waiver of any such
right or remedy may be unenforceable; in addition, certain remedial
provisions of the Agreement may be subject to procedural requirements
not set forth therein;
<PAGE>
The Chase Manhattan Bank, -4- August 2, 1996
et al.
(e) this opinion is limited to the laws, regulations,
documents, agreements, contracts and instruments within the scope of
this opinion in effect on and as of the date of this opinion, and we
disclaim any responsibility to advise you of changes in any of the
foregoing which may hereafter come to our attention;
(f) we express no opinion whatsoever
with respect to trademarks, copyrights or patents;
and
(g) we express no opinion with respect
to Section 10.13(b) of the Agreement.
Based upon the foregoing, and subject to the
limitations set forth herein, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as described in the
Company's Annual Report on Form 10-K for the Fiscal Year Ended December 31,
1995.
2. The execution, delivery and performance by the Company of
the Agreement and the borrowings thereunder (the "Transactions") are within the
Company's corporate powers, have been duly authorized by all necessary corporate
action, and, to the best of our knowledge, require no action by or in respect
of, or filing with, any governmental body, agency or official. To the best of
our knowledge, the Transactions do not contravene, or constitute a default
under, (a) the General Corporation Law of Delaware or any Federal or New York
law or regulation which, in our experience, is normally applicable to general
business corporations which are not engaged in regulated business activities and
to transactions such as the Transactions (including, without limitation, the
Margin Regulations assuming the representations and warranties of the Company
contained in Section 4.12(a) and the second sentence of Section 4.12(b) of the
Agreement are true), (b) the certificate of incorporation or by-laws of the
Company or (c) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation or imposition of
any Lien on any asset of the Company or any of its subsidiaries.
<PAGE>
The Chase Manhattan Bank, -5- August 2, 1996
et al.
3. The Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the Company
enforceable against it in accordance with its terms.
4. To the best of our knowledge, except as disclosed in
Schedule 4.06(a) to the Agreement, there is no action, suit or proceeding
pending against or affecting the Company or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or official, in which there
is a reasonable likelihood of an adverse decision which would materially
adversely affect the business of the Company and its Subsidiaries, considered as
a whole, or which in any manner draws into question the validity of the
Agreement.
5. To the best of our knowledge, no action, consent or
approval of, registration or filing with, or any other action by, any government
authority is or will be required in connection with the Transactions, except
such as have been made or obtained and are in full force and effect.
6. Neither the Company nor any of its subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended (the "1940 Act"), or (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
We are members of the bar of the State of New York, and we
express no opinion herein as to the laws of any jurisdiction other than those of
the United States of America, the State of New York and the General Corporation
Law of the State of Delaware.
The opinion expressed herein is solely for your benefit and
may not be relied upon in any manner or for any purpose by, or disclosed to, any
other Person.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT G
[FORM OF]
ALTERNATE CURRENCY ADDENDUM
[SPECIFY CURRENCY] ADDENDUM dated as of [ ], to
the Credit Agreement (as defined below).
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Addendum, the
following terms shall have the meanings specified below:
"Alternate Currency Loan" shall mean any extension of credit,
denominated in [specify currency], made to a Borrower pursuant to Section
2.01(b) of the Credit Agreement and this Addendum. An Alternate Currency Loan
shall bear interest at the rate specified in Schedule II, or, if no rate shall
be specified, shall be a Eurocurrency Loan.
"Base Rate" shall mean [identify any base rate customarily
used in connection with loans in the applicable currency].
"Company" shall mean BT Office Products International, Inc., a
Delaware corporation.
"Credit Agreement" shall mean the Competitive Advance and
Revolving Credit Facility Agreement dated as of August 2, 1996, among the
Company, the Subsidiaries named therein, the Guarantors named therein and the
Lenders from time to time party thereto, The Chase Manhattan Bank, as
Administrative Agent, and ABN AMRO Bank N.V., as Documentation Agent, as the
same may be amended, waived or modified from time to time.
SECTION 1.02. Terms Generally. Terms defined in the Credit
Agreement shall have the same meanings in this Addendum. Wherever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Sections and Schedules shall be deemed references to Sections of and Schedules
to this Addendum unless the context shall otherwise require.
ARTICLE II
The Credits
-----------
SECTION 2.01. Alternate Currency Loans. (a) This Addendum (as
the same may be amended, waived or modified from time to time) is an "Alternate
Currency Addendum" as defined in the Credit Agreement and is, together with the
borrowings made hereunder, subject in all respects to the terms and provisions
of the Credit Agreement. The Alternate Currency Lenders party to this Addendum
are set forth on Schedule I.
(b) Any modifications to the Interest Payment Dates, Interest
Periods, interest rates and any other special provisions
<PAGE>
2
applicable to Alternate Currency Loans under this Addendum are set forth on
Schedule II.
(c) Any special borrowing procedures or funding arrangements
for Alternate Currency Loans under this Addendum, any provisions for the
issuance of promissory notes to evidence the Alternate Currency Loans made
hereunder and any additional information requirements applicable to Alternate
Currency Loans under this Addendum are set forth on Schedule III.
SECTION 2.02. Maximum Borrowing Amounts. (a) The Alternate
Currency Lender Maximum Borrowing Amount for each Alternate Currency Lender
party to this Addendum is set forth on Schedule I. The Alternate Currency
Facility Maximum Borrowing Amount under this Addendum is set forth on Schedule
I.
(b) Upon at least [10] Business Days' prior irrevocable
written or telecopy notice to the Administrative Agent, the Company may from
time to time reduce (including to zero) the aggregate Alternate Currency Lender
Maximum Borrowing Amounts under this Addendum; provided, however, that (i) each
partial reduction shall be in an integral multiple of [$1,000,000] and in a
minimum principal amount of [ ] and (ii) no such reduction shall be permitted
if, after giving effect thereto, to any repayments of Loans made on the
effective date thereof and to any adjustments under Section 2.23 of the Credit
Agreement (A) the Dollar Equivalent of all Loans outstanding under this Addendum
would exceed the Alternate Currency Facility Maximum Borrowing Amount under this
Addendum or (B) the Dollar Equivalent of all Loans of any Alternate Currency
Lender outstanding under this Addendum would exceed the Alternate Currency
Lender Maximum Borrowing Amount of such Alternate Currency Lender. Any such
reduction shall be allocated pro rata among all the Alternate Currency Lenders
party to this Addendum by reference to their respective Alternate Currency
Lender Maximum Borrowing Amounts hereunder (and without taking into account
Section 2.23 of the Credit Agreement).
ARTICLE III
Representations and Warranties
------------------------------
The Company hereby makes and confirms each representation and
warranty applicable to each Borrower or any of its subsidiaries contained in
Article IV of the Credit Agreement. The Company and each Borrower represent and
warrant to each of the Alternate Currency Lenders party to this Addendum that no
Default or Event of Default has occurred and is continuing, and no Default or
Event of Default shall arise as a result of the making of Loans hereunder or any
other transaction contemplated hereby.
ARTICLE IV
Miscellaneous Provisions
------------------------
SECTION 4.01. Amendment; Termination. (a) This Addendum
(including the Schedules hereto) may not be amended without the prior
<PAGE>
3
written consent of Lenders representing a majority in amount of the Alternate
Currency Lender Maximum Borrowing Amounts hereunder, but subject to the
provisions of Section 10.02 of the Credit Agreement; provided, however, that
this Section 4.01(a) shall not restrict assignments pursuant to Section 4.02.
(b) This Addendum may not be terminated without the prior
written consent of each Alternate Currency Lender party hereto unless there are
no Alternate Currency Loans outstanding hereunder, in which case no such consent
shall be required; provided, however, that this Addendum shall terminate on the
date that the Credit Agreement terminates in accordance with its terms.
SECTION 4.02. Assignments. Section 10.04 of the Credit
Agreement shall apply to assignments by Alternate Currency Lenders of
obligations and Loans hereunder; provided, however, that a Alternate Currency
Lender may not assign any obligations or rights hereunder to any Person who is
not (and does not simultaneously become) a Lender under the Credit Agreement.
SECTION 4.03. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at [ ], Attention
[ ] (Telecopy No. [ ]) with a copy to the Company
at its address or telecopy number referenced in Section 10.01 of the
Credit Agreement;
(b) if to the Alternate Currency Agent, to it at the Alternate
Currency Agent's branch of account with a copy to the Administrative
Agent at their telecopy numbers referenced in Section 10.01 of the
Credit Agreement; and
(c) if to an Alternate Currency Lender, to it at its address
(or telecopy number) set forth in Schedule I or in the Assignment and
Acceptance pursuant to which such Alternate Currency Lender became a
party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section with telephonic confirmation
of receipt thereof by such party or in accordance with the latest unrevoked
direction from such party given in accordance with this Section.
SECTION 4.04. Ratification of Guarantee by the Company. By its
execution of this Addendum, the Company hereby ratifies and confirms its
guarantee contained in Article VIII of the Credit Agreement with respect to the
Alternate Currency Loans made pursuant to this Addendum.
SECTION 4.05. Setoff. Each Alternate Currency Lender agrees
that if it shall, though the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or any other security
<PAGE>
4
or interest arising from, or in lieu of, such secured claim, received by such
Alternate Currency Lender under any applicable bankruptcy, insolvency or other
similar law or otherwise, or by similar means, obtain payment (voluntary or
involuntary) of any Alternate Currency Loan or Loans as a result of which the
unpaid principal portion of the Alternate Currency Loans of such Alternate
Currency Lender shall be proportionately less than the unpaid principal portion
of the Alternate Currency Loans of any other Alternate Currency Lender it shall
be deemed simultaneously to have purchased from such other Alternate Currency
Lender at face value, and shall promptly pay to such other Alternate Currency
Lender the purchase price for, a participation in the Alternate Currency Loans
of such other Alternate Currency Lender, so that the aggregate unpaid principal
amount of the Alternate Currency Loans and participations in the Alternate
Currency Loans held by each Alternate Currency Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Alternate Currency
Loans then outstanding as the principal amount of its Alternate Currency Loans
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Alternate Currency Loans outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 4.05 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Each Borrower party to this Addendum
expressly consents to the foregoing arrangements and agrees that any Alternate
Currency Lender holding a participation in an Alternate Currency Loan deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by such Borrowing
Subsidiary to such Alternate Currency Lender by reason thereof as fully as if
such Alternate Currency Lender had made an Alternate Currency Loan directly to
such Borrower in the amount of such participation.
SECTION 4.06. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be duly executed by their duly authorized officers, all as of the
date and year first above written.
BT OFFICE PRODUCTS INTERNATIONAL, INC.,
by
_______________________________
Name:
Title:
[BORROWERS],
by
_______________________________
Name:
<PAGE>
5
Title:
[ALTERNATE CURRENCY LENDERS],
by
_______________________________
Name:
Title:
<PAGE>
ALTERNATE CURRENCY LENDERS
SCHEDULE I
to Alternate Currency Addendum
Alternate Currency
Facility Name and Address of Alternate Currency Lender
Maximum Borrowing Amount Alternate Currency Lender Maximum Borrowing Amount
- ------------------------ ------------------------- ------------------------
US$ ============ US$
<PAGE>
MODIFICATIONS
SCHEDULE II
to Alternate Currency Addendum
1. Interest Payment Dates.
-----------------------
2. Interest Periods.
-----------------
3. Spreads.
--------
4. Interest Rates.
---------------
5. Other.
------
<PAGE>
SCHEDULE III
to Alternate Currency Addendum
OTHER PROVISIONS
1. Borrowing Procedures.
---------------------
2. Funding Arrangements.
---------------------
3. Promissory Notes.
-----------------
4. Information Requirements.
-------------------------
<PAGE>
SCHEDULE 2.01
- --------------------------------------------------------------------------------
Contact Person U.S. Dollar
and Telephone Equivalent
Name and Address of Lender and Telecopy Numbers Commitment
-------------------------- -------------------- ----------
- --------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK Jesus Sang $30,000,000
270 Park Avenue
New York, NY 10017 Tel. #(212) 622-0006
Domestic Lending Office: Fax #(212) 622-0122
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
ABN AMRO BANK N.V. David Sagers $30,000,000
Domestic Lending Office: Tel. #(312) 904-2853
Fax #(312) 606-8425
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
BANK OF AMERICA Richard Kerbis $22,500,000
Domestic Lending Office: Tel. #(847) 952-1110
Fax #(847) 952-1136
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
BAYERISCHE VEREINSBANK AG, Alexander M. Blodi $22,500,000
NEW YORK BRANCH
Tel. #(212) 210-0394
Domestic Lending Office: Fax #(212) 210-0348
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
THE FIRST NATIONAL BANK OF Susan Comstock $22,500,000
CHICAGO
Tel. #(312) 732-4244
Domestic Lending Office: Fax #(312) 732-5161
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
<PAGE>
2
- --------------------------------------------------------------------------------
Contact Person U.S. Dollar
and Telephone Equivalent
Name and Address of Lender and Telecopy Numbers Commitment
-------------------------- -------------------- ----------
- --------------------------------------------------------------------------------
THE FUJI BANK LIMITED James Mitsch $20,000,000
Domestic Lending Office: Tel. #(312) 621-3387
Fax #(312) 621-0539
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
MELLON BANK Irene Burczynski $22,500,000
Domestic Lending Office: Tel. #(212) 702-5255
Fax #(212) 702-5269
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, Michael Kempel $22,500,000
LTD., CHICAGO BRANCH
Tel. #(312) 696-4682
Domestic Lending Office: Fax #(312) 696-4535
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
CREDIT LYONNAIS NEW YORK Michael Moretti $22,500,000
BRANCH
Tel. #(212) 261-7308
Domestic Lending Office: Fax #(212) 459-3179
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
FIRST NATIONAL BANK OF Peter Swain $15,000,000
MARYLAND
Tel. #(410) 244-4886
Domestic Lending Office: Fax #(410) 244-4446
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
<PAGE>
3
- --------------------------------------------------------------------------------
Contact Person U.S. Dollar
and Telephone Equivalent
Name and Address of Lender and Telecopy Numbers Commitment
-------------------------- -------------------- ----------
- --------------------------------------------------------------------------------
NORTHERN TRUST COMPANY Michelle Teteak $20,000,000
Domestic Lending Office: Tel. #(312) 444-3506
Fax #(312) 444-5055
Eurocurrency Lending Office:
- --------------------------------------------------------------------------------
<PAGE>
Schedule 4.04(b) - Material Adverse Changes
1. See Notes 2 and 6 to the Condensed Consolidated Financial Statements
(Unaudited) in the Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1996.
<PAGE>
Schedule 4.06(a) - Litigation
1. See Note 6 to the Condensed Consolidated Financial Statements
(Unaudited) in the Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1996.
<PAGE>
Schedule 6.01 - Existing Liens
None.
<PAGE>
Schedule 6.05 - Transactions With Affiliates
The Company and its Affiliates from time to time have entered into
various business transactions and agreements. The following is a list of such
material agreements and transactions between the Company and its Affiliates that
will continue to be effective from and after the date hereof. For a more
complete description of such transactions and agreements, where applicable, see
"Certain Relationships and Related Transactions" in the Company's Proxy
Statement dated May 24, 1996 sent to stockholders and filed with the SEC in
connection with the Annual Meeting of Stockholders held on June 25, 1996:
1. In 1994, the Company advanced $1,017,928 to Rudolf A.J. Huyzer, the
Company's President and Chief Executive Officer, for the purchase of a
residence. Pursuant to the note which evidences this advance, Mr.
Huyzer is required to make quarterly payments of principal to the
Company until September 2024.
2. Registration Rights Agreement dated as of June 15, 1995
among the Company, NV Koninklijke KNP BT ("KNP BT") and
Buhrmann-Tetterode International B.V. ("BTIBV").
3. Tax Matters Agreement dated as of July 1, 1995 among the
Company, KNP BT, BTIBV, Astro-Valcour, Inc. and Sengewald
U.S.A., Inc., as modified by Amendment No. 1 to Tax Matters
Agreement dated as of June 7, 1996.
4. Intercompany Services Agreement dated as of June 15, 1995
between the Company and KNP BT.
5. Agreement for Credit Support dated as of June 15, 1995 among
the Company, KNP BT and certain subsidiaries of the Company.
6. Credit Agreement dated as of June 15, 1995 between the Company and KNP
BT Antilliana N.V. ("Antilliana"), as modified by the Assignment and
Modification Agreement dated as of June 26, 1996 among the Company,
Antilliana and KNP BT Finance (USA), Inc.
7. The Company has sold office products and related services to its
Affiliates and has occasionally purchased certain products from its
Affiliates for resale. The Company expects to continue to engage in
similar affiliated party transactions on generally the same basis as it
would engage in such transactions with unaffiliated third parties.
8. The License Agreement dated as of June 15, 1995 between the
Company and KNP BT.
<PAGE>
9. Veenman Kantoormachines BV, Repro Copiers Nederland BV, Direct Dealer
Services BV and Veenman Office Management BV (collectively, the
"Veenman Group" and each a subsidiary of the Company) lease a facility
from an affiliate of KNP BT under an operating lease that expires on
September 30, 1999.
10. The purchase by BT Office Products Deutschland GmbH & Co., KG, an
indirect wholly-owned subsidiary of the Company, of all of the share
capital of bax Burosysteme Vertriebsgellschaft mbH from KNP BT
Beteiligungen Deutschland GmbH, a subsidiary of KNP BT.
-2-
<PAGE>
Schedule 6.01 - Existing Liens
None.
<PAGE>
SCHEDULE II
Committed Currencies
Pounds Sterling
Deutsche Marks
No modifications to borrowing procedures.
<PAGE>
Exhibit 10.3
BT OFFICE PRODUCTS INTERNATIONAL
Riverwalk, Suite 590
2150 East Lake Cook Road
Buffalo Grove, IL 60089
June 25, 1996
Mr. Howard L. Brown
290 Westwind Court
Norwood, NJ 07648
Dear Howard:
This letter will confirm our mutual agreement regarding the
terms and conditions of the termination of your employment with BT OFFICE
PRODUCTS INTERNATIONAL, INC. (the "Company") and constitutes an agreement
between you and the Company.
1. You hereby resign your position as Vice President and
Regional President - Northeast Region effective the date hereof (the "Effective
Date") and as an employee of the Company effective July 18, 1996 (the
"Termination Date"). The letter from the Company to you dated June 12, 1996
purporting to furnish written notice under Section 3(b) of your employment
agreement dated as of January 1, 1995 is hereby withdrawn as void and is of no
further force and effect.
2. Subject to your strict performance of the covenants and
agreements hereunder, including, without limitation, the covenants and
agreements in Paragraphs 7 and 8 hereof, the Company agrees to make payments to
you in the aggregate amount of $175,000, to be paid in five installments of
$35,000.00, to be paid by check mailed to you at the address provided by
Paragraph 13 below on or before the dates six, nine, twelve, fifteen and
eighteen months, respectively, after the Effective Date.
3. Pursuant to the Company's 1995 Stock Option Plan (the
"Option Plan") and the Option Agreement (the "Option Agreement") dated July 18,
1995 between you and the Company, options to purchase 52,500 shares will vest on
July 18, 1996. Notwithstanding anything in the Option Plan or Option Agreement
to the contrary, such options will terminate on October 16, 1996. The unvested
balance of your options are hereby terminated and cancelled.
4. Except to the extent required by state or federal
law, you and the Company each agree to refrain from making any
public statements regarding the other which are disparaging of
<PAGE>
Mr. Howard L. Brown -2- June 25, 1996
the other. Statements made in the course of a governmental or legal proceeding
shall not be deemed to be public statements. Each of the Company and you agree
to keep the amount of any payments made hereunder confidential and disclose such
information to no one, except for each party's attorneys and accountants and
except as may be required by law.
5. You acknowledge that you have opted not to participate in
the Company's health insurance plan and that, accordingly, you have no rights to
any coverage or continuation of coverage thereunder, including, without
limitation, any benefits available under the federal Consolidated Budget
Reconciliation Act or any similar state law.
6. (a) The Company shall promptly pay you $13,461.00 in full
consideration of your earned and unused vacation benefits. You shall be paid
your salary through the date hereof in accordance with the normal payroll
practices of the Company.
(b) The Company will reimburse you for all reasonable and
customary business expenses incurred by you in performing your duties as Vice
President and Regional President - Northeast Region prior to June 12, 1996, upon
receipt of reasonably itemized documentation as required by the Internal Revenue
Code and approval by the Company. You shall have no rights to any additional
payments in respect of your "perk" allowance except that the Company shall
reimburse you for your expenses in respect of your automobile lease and cellular
telephone through June 25, 1996 upon receipt of proper documentation.
(c) Any payments made under Paragraph 2 hereof or under
this Paragraph 6 shall be subject to applicable withholding taxes but in no
event shall any amount payable under this Paragraph 6 be reduced for any other
reason.
7. (a) You recognize and acknowledge that the Company's
marketing methods, forms, customer lists, price schedules, pricing systems,
product lists, catalogues and similar proprietary information, as the same may
exist from time to time, to the extent that these marketing methods, forms,
customer lists, price schedules, pricing systems, product lists, catalogues and
similar proprietary information are not publicly available, are valuable and
unique assets of the Company. You agree that you will not at any time, directly
or indirectly, use any of the foregoing for your own purposes or disclose any of
the foregoing information or any part thereof to any person or entity for any
reason or purpose whatsoever. In the event of a breach, or threatened breach, by
you of the provisions of this Paragraph 8, the Company shall, in addition to all
<PAGE>
Mr. Howard L. Brown -3- June 25, 1996
other available remedies, be entitled to an injunction restraining you from
disclosing, in whole or in part, any of the foregoing information or from
rendering any services to any person or entity to whom the foregoing
information, in whole or in part, has been disclosed and/or threatened to be
disclosed.
(b) You hereby agree that any and all improvements,
inventions, discoveries, formulae, processes, methods, know-how, confidential
data, trade secrets and other proprietary information (collectively, "Work
Product") within the scope of the Business (as defined below) of the Company or
any affiliate of the Company which you have conceived or made during your
employment with the Company shall be and are the sole and exclusive property of
the Company.
8. (a) You acknowledge that, during your employment with the
Company, you have gained valuable and proprietary information regarding the
Company and its respective operations and customers. Accordingly, in
consideration of the covenants and agreements of the Company under this letter,
you covenant and agree that, for a period of eighteen (18) consecutive months
starting on the Effective Date (the "Term"), you will not directly or indirectly
through any other person or entity
(i) engage in any business or activity that competes
with the office products (including, without limitation, office
furniture, office equipment, office supplies, printing and advertising
specialties, tape, labels and other adhesive products, desk and
telephone accessories, writing instruments, paper products and filing
supplies, printing and related business forms, ribbons and computer
supplies, school supplies and items described in the United Stationers
annual office supplies catalogs and flyers) business of the Company and
its subsidiaries (the "Business") or own, operate, manage, join,
control, participate in the ownership, management, operation or control
of, or be paid or employed by or act as consultant, agent, distributor,
sales representative or contractor for, any business entity or activity
which is engaged in the Business; or
(ii) solicit any sales to or other business of any
person or entity which during the term of your employment with the
Company was a customer or at the time of termination of your employment
is an active prospect of the Company or any of its subsidiaries in
connection with the Business; or
(iii) hire, or attempt to hire (or assist anyone
else in hiring or attempting to hire) for employment or as
<PAGE>
Mr. Howard L. Brown -4- June 25, 1996
an independent sales representative, contractor or consultant, in any
business enterprise or activity, any person who is, or during the
twelve (12) month period immediately preceding the Effective Date was,
an employee or independent sales representative, contractor or
consultant of the Company or any of its subsidiaries or induce (or
assist anyone in inducing) in any way any employee of or independent
sales representative or contractor of or consultant to the Company to
resign, sever employment, or breach or terminate an employment or sales
representative or other services agreement with the Company or any of
its subsidiaries; or
(iv) lend money to, guarantee the lending of money
to, or otherwise invest in or arrange for or promote the financing of
any business or other activity that competes with the Business.
(b) You acknowledge that the foregoing noncompetition
covenant is a fair and reasonable restriction, that such covenant is reasonably
required for the protection of the Company and that the consideration therefor
is a fair and adequate consideration.
(c) You acknowledge that any breach or threatened or
attempted breach of any provision of this Paragraph 8 would cause irreparable
harm to the Company not compensable in money damages and that the Company and
each of its affiliates shall be entitled, in addition to all other applicable
remedies, to a temporary and permanent injunction and a decree for specific
performance of the terms of this Paragraph 8 without being required to prove
damages or furnish any bond or other security.
(d) In the event that any provision of this Paragraph 8 is
determined to be invalid by any court or other entity of competent jurisdiction,
the provisions of this Paragraph 8 shall be deemed to have been amended, and the
parties hereto agree to execute all documents necessary to evidence such
amendment, so as to eliminate or modify any such invalid provision so as to
carry out the intent of this Paragraph 8 as far as possible and to render the
terms of this Paragraph 8 enforceable in all respects as so modified.
9. The parties agree that simultaneously with the execution of
this agreement and in consideration of the agreements contained herein they
shall deliver the respective forms of release attached hereto as Exhibits A and
B, duly authorized and executed.
<PAGE>
Mr. Howard L. Brown -5- June 25, 1996
10. This letter and the obligations of the parties hereunder
shall be construed, governed and enforced in accordance with the laws of the
State of New York without giving effect to its rules regarding conflicts of law,
and the parties hereto expressly waive trial by jury in any judicial proceeding
involving, directly or indirectly, any matter in any way arising out of this
letter or out of the employment relationship between us.
11. (a) This letter and the releases contemplated hereby
constitute all of the understandings and agreements existing between the parties
hereto concerning the specific subject matter of this letter and the rights and
obligations created under it as of this date and supersedes and replaces any and
all other agreements, plans or arrangements between the parties hereto
including, without limitation, the letter agreement dated the date hereof
between you and the Company on document no. 90057251.9.
(b) Notwithstanding anything to the contrary contained
herein, your rights to indemnification under the Company's Restated Certificate
of Incorporation and Amended and Restated By-laws remain in full force and
effect to the extent therein provided. In addition, the indemnification
agreement dated July 18, 1995 between the Company and you remains in full force
and effect to the extent therein provided.
12. This letter may not be amended, altered, modified, or
otherwise changed in any respect except by the written agreement of the parties.
Any waiver by any party of any breach of any provision of this letter shall not
be a waiver of any subsequent breach thereof or of any breach of any other
provision hereof.
13. Any notice or other communication required or permitted
under this letter shall be effective only if it is in writing and delivered
personally or sent by a recognized overnight courier, postage prepaid, addressed
as follows:
If to the Company:
BT Office Products International, Inc.
2150 East Lake Cook Road
Buffalo Grove, IL 60089
Attention: Rudolf A.J. Huyzer
<PAGE>
Mr. Howard L. Brown -6- June 25, 1996
with a copy to:
Winthrop, Stimson, Putnam & Roberts
695 East Main Street
Stamford, CT 06901
Attention: Frode Jensen, III, Esq.
If to Howard L. Brown:
Mr. Howard L. Brown
290 Westwind Court
Norwood, NJ 07648
with a copy to:
Howard, Darby & Levin
1330 Avenue of the Americas, Second Floor
New York, NY 10019
Attention: Jack P. Levin, Esq.
or to such other address as either party may designate by notice to the other,
and shall be deemed to have been given upon receipt.
14. This letter may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
Kindly sign this letter where indicated to reflect your
agreement to its terms.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/ Rudolf A.J. Huyzer
_________________________________
Name: Rudolf A.J. Huyzer
Title: President and Chief
Executive Officer
ACKNOWLEDGED AND AGREED:
/s/ Howard Brown
_______________________
Howard L. Brown
<PAGE>
Exhibit A
RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT BT Office Products International, Inc. and NV Koninklijke KNP BT (and their
respective parent corporations, subsidiary corporations, divisions, predecessors
and successors and all related or affiliated legal or business entities), their
present and former stockholders, and, in their official capacities only,
officers, directors, agents, employees, attorneys and representatives,
collectively, as RELEASOR, in consideration of the sum of Ten Dollars ($10.00),
and other good and valuable consideration, received from Howard L. Brown, as
RELEASEE, receipt of which is hereby acknowledged, does (except as hereafter
provided) release and discharge Howard L. Brown, the RELEASEE, and RELEASEE'S
heirs, executors, administrators, successors and assigns from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty or equity, regarding, in
connection with, or in any way whatsoever arising out of RELEASEE's employment
or termination of employment with RELEASOR, which against the RELEASEE the
RELEASOR, RELEASOR'S successors and assigns ever had, now has or hereafter can,
shall or may have for, upon, or by reason of any matter, cause or thing
<PAGE>
whatsoever from the beginning of the world to the day of the date of this
RELEASE, except as is necessary to enforce the terms of the Letter Agreement
dated as of June 25, 1996 hereof between RELEASOR and RELEASEE.
Notwithstanding the foregoing, the release and discharge
provided for herein shall not apply to any claim for contribution or
indemnification (whether asserted by way of third-party complaint, cross-claim
or independent action) which may hereafter be asserted in the name of the
RELEASOR by its present insurers pursuant to their subrogation rights, if any,
if such release and discharge would be in derogation of such subrogation rights
under existing policies against RELEASEE in or in connection with, (a) an action
entitled Irene T. Wright v. BT Office Products International, Inc., et al., 96
Civ. 2685 (DAB), in the United States District Court for the Southern District
of New York (the "Wright Action") or (b) any other action in which claims are
made relating to the same subject matter as the Wright Action.
RELEASOR acknowledges that it has been advised by competent
legal counsel in connection with the execution of this RELEASE, that this
paragraph should constitute written notice to RELEASOR OF RELEASOR'S right to be
advised by legal counsel in connection with this RELEASE and RELEASOR
understands its respective rights and obligations. RELEASOR declares, under
penalty of perjury, that RELEASOR has completely read this RELEASE, and fully
understands the terms and contents and freely, voluntarily and without coercion
enter into this RELEASE.
-2-
<PAGE>
This RELEASE and the Letter Agreement referred to above
contain the entire agreement between the parties and it completely supersedes
any prior written or oral agreements or representations concerning the subject
matter hereof. Any oral representation or modification concerning this RELEASE
shall be of no force or effect. This RELEASE can be modified only by a writing
signed by the parties to this RELEASE.
This RELEASE shall be governed by and construed in accordance
with the substantive laws of the State of New York.
The words "RELEASOR" and "RELEASEE" include all Releasors and
all Releasees under this RELEASE.
IN WITNESS WHEREOF, the RELEASOR has caused this RELEASE to be
executed by its duly authorized officer and its corporate seal to be hereunto
affixed on August 6, 1996.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/ Rudolf A.J. Huyzer
__________________________________
Title:
NV KONINKLIJKE KNP BT
By:/s/ Frans Koffrie
__________________________________
Title:
By:/s/ Rob Bonnier
__________________________________
Title:
-3-
<PAGE>
STATE OF NY )
) ss.: ____________ August 6th, 1996
COUNTY OF NY )
On this 6th day of August, 1996, before me personally came
Rudolf Huyzer, who, being by me duly sworn, did depose and say that his
address is _______________________, that he is the ________________ of BT Office
Products International, Inc., the corporation described in, and which executed
the foregoing Release, that he knows the seal of the corporation, that the seal
affixed to the Release is the corporate seal, that it was affixed by order of
the board of the corporation, and that he signed his name by like order.
/s/ Theresa Servello
____________________________________
Notary Public
STATE OF NY )
) ss.: ____________ August 6th, 1996
COUNTY OF NY )
On this 6th day of August, 1996, before me personally came
Frans Koffrie, who, being by me duly sworn, did depose and say that
his address is ______________________, that he is the ___________________ of NV
Koninklijke KNP BT, the corporation described in, and which executed the
foregoing Release, that he knows the seal of the corporation, that the seal
affixed to the Release is the corporate seal, that it was affixed by order of
the board of the corporation, and that he signed his name by like order.
/s/ Theresa Servello
_____________________________________
Notary Public
-4-
<PAGE>
STATE OF NY )
) ss.: ___________ August __, 1996
COUNTY OF NY )
On this 6th day of August, 1996, before me personally came
Rob Bonnier, who, being by me duly sworn, did depose and say that
his address is ______________________, that he is the ___________________ of NV
Koninklijke KNP BT, the corporation described in, and which executed the
foregoing Release, that he knows the seal of the corporation, that the seal
affixed to the Release is the corporate seal, that it was affixed by order of
the board of the corporation, and that he signed his name by like order.
/s/ Theresa Servello
_____________________________________
Notary Public
-5-
<PAGE>
Exhibit B
RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT Howard L. Brown, as RELEASOR, in consideration of the sum of Ten Dollars
($10.00), and other good and valuable consideration, received from BT Office
Products International, Inc., as RELEASEE, receipt of which is hereby
acknowledged, does hereby release and discharge BT Office Products
International, Inc., the RELEASEE, RELEASEE's parent corporations, subsidiary
corporations, divisions, predecessors, successors and assigns and all related or
affiliated legal or business entities, present and former stockholders
(including the respective heirs, executors, administrators, successors and
assigns of such stockholders) and, in their official capacities only, officers,
directors, agents, employees, attorneys and representatives (including the
respective heirs, executors, administrators, successors and assigns of such
persons) from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law, admiralty or
equity, regarding, in connection with or in any way arising out of RELEASOR's
employment or the termination of such employment with RELEASEE, including, but
not limited to, claims of discrimination (including claims of discrimination
under the Age Discrimination in Employment Act) or wrongful discharge,
<PAGE>
which against the RELEASEE, the RELEASOR or RELEASOR's successors or assigns
ever had, now have or hereafter can, shall or may, have for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
day of the date of this RELEASE, except as is necessary to enforce the terms of
the Letter Agreement dated as of June 25, 1996 between RELEASOR and RELEASEE.
RELEASOR acknowledges that RELEASOR has been advised by
competent legal counsel in connection with the execution of this RELEASE, that
this paragraph should constitute written notice to RELEASOR of RELEASOR's right
to be advised by legal counsel in connection with this RELEASE and that RELEASOR
understands RELEASOR's respective rights and obligations. RELEASOR declares,
under penalty of perjury, that RELEASOR has completely read this RELEASE, and
fully understands the terms and contents and freely, voluntarily and without
coercion enters into this RELEASE.
This RELEASE and the Letter Agreement referred to above
contain the entire agreement between the parties and it completely supersedes
any prior written or oral agreements or representations concerning the subject
matter hereof. Any oral representation or modification concerning this RELEASE
shall be of no force or effect. This RELEASE can be modified only by a writing
signed by the parties to this RELEASE.
This RELEASE shall be governed by and construed in accordance
with the substantive laws of the State of New York.
The words "RELEASOR" and "RELEASEE" include all releasors and
all releasees under this RELEASE.
-2-
<PAGE>
IN WITNESS WHEREOF, the RELEASOR has executed this RELEASE on
July 17, 1996.
/s/ Howard Brown
_____________________________________
Howard L. Brown
STATE OF NEW YORK )
) ss.: July 17, 1996
COUNTY OF NEW YORK )
On this 17th day of July, 1996, before me personally came
Howard L. Brown, to me known, who, being by me duly sworn, did depose and say
that his address is 290 Westwind Court, Norwood, New Jersey 07648, and
acknowledged that he executed the foregoing Release for the purposes therein
contained.
_____________________________________
Notary Public
-3-
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from BT Office
Products International, Inc. Form 10Q for the period ended June 30, 1996 and
is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 5,747
<SECURITIES> 0
<RECEIVABLES> 196,506
<ALLOWANCES> 3,994
<INVENTORY> 93,261
<CURRENT-ASSETS> 316,844
<PP&E> 120,930
<DEPRECIATION> 47,814
<TOTAL-ASSETS> 596,404
<CURRENT-LIABILITIES> 165,522
<BONDS> 16,010
0
0
<COMMON> 334
<OTHER-SE> 265,040
<TOTAL-LIABILITY-AND-EQUITY> 596,404
<SALES> 681,713
<TOTAL-REVENUES> 681,713
<CGS> 485,611
<TOTAL-COSTS> 485,611
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,582
<INCOME-PRETAX> 15,124
<INCOME-TAX> 7,108
<INCOME-CONTINUING> 8,016
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,016
<EPS-PRIMARY> 0.24
<EPS-DILUTED> 0.24
</TABLE>
