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Exhibit 10.1
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
DATED AS OF MAY 10, 2001
OFFICE DEPOT, INC., a Delaware corporation (the "BORROWER"),
the banks, financial institutions and other institutional lenders (collectively,
the "INITIAL LENDERS") party hereto, SUNTRUST BANK, as paying agent (together
with any successor thereto appointed pursuant to Article VII of the Existing
Credit Agreement referred to below, the "ADMINISTRATIVE AGENT") for the Lenders
(as defined in the Existing Credit Agreement referred to below), ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ INC. ("SSBI") and BANK ONE, NA ("BANK ONE"), as joint lead arrangers,
SSBI, as sole bookrunner, CITIBANK, N.A., as sole Syndication Agent, and Bank
One, as Co-Documentation Agent, hereby agree as follows:
PRELIMINARY STATEMENTS
(1) The Borrower is party to a 364 Day Revolving Credit
Agreement dated as of June 2, 2000 (as amended, supplemented or otherwise
modified from time to time to (but not including) the date of this Amendment and
Restatement, the "EXISTING CREDIT AGREEMENT") with the banks, financial
institutions and other institutional lenders party thereto and SunTrust Bank, as
Administrative Agent for the Lenders and such other lenders, Bank of America,
N.A., as Syndication Agent, Bank One, NA, as Documentation Agent and Citibank,
N.A., as Managing Agent. Capitalized terms not otherwise defined in this
Amendment and Restatement shall have the same meanings as specified in the
Existing Credit Agreement.
(2) The parties to this Amendment and Restatement desire to
amend the Existing Credit Agreement as set forth herein and to restate the
Existing Credit Agreement in its entirety to read as set forth in the Existing
Credit Agreement with the following amendments.
(3) The Borrower has requested that the Lenders agree to
extend credit to it from time to time in an aggregate principal amount of up to
$250,000,000 for general corporate purposes of the Borrower and its Subsidiaries
not otherwise prohibited under the terms of this Agreement. The Lenders have
indicated their willingness to agree to extend credit to the Borrower from time
to time in such amount on the terms and conditions of this Amendment and
Restatement.
SECTION 1. AMENDMENTS TO THE EXISTING CREDIT AGREEMENT. The
Existing Credit Agreement is, effective as of the date of this Amendment and
Restatement and subject to the satisfaction of the conditions precedent set
forth in Section 2, hereby amended as follows:
(a) The recital of parties is amended in full to read as set
forth in the recital of parties to this Amendment and Restatement.
(b) Section 1.1 is amended by deleting the definitions of
"Commitment" and "Lenders" set forth therein and replacing them, respectively,
with the following new definitions thereof:
"COMMITMENT" or "REVOLVING LOAN COMMITMENT" shall mean, at any
time for any Lender, the amount of such commitment set forth opposite
such Lender's name on Schedule I hereto, as the same may be decreased
from time to time as a result of any reduction thereof pursuant to
Section 2.3, any assignment thereof pursuant to Section 10.6, or any
amendment
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thereof pursuant to Section 10.2, or as the same may be increased from
time to time pursuant to Section 3.22, which amount shall include such
Lender's Revolving Loans.
"LENDERS" means, collectively, each Initial Lender and each
other Person that shall become a party hereto pursuant to Sections 3.22
or 10.6.
(c) The definition of "Applicable Margin" in Section 1.1 is
amended by deleting the table included therein and substituting therefor the
following:
Eurodollar
Rating: Margin/Letter of
Level S&P/▇▇▇▇▇'▇ Facility Fee Credit Fee Utilization Fee
----- ----------- ------------ ---------------- ---------------
I Less than A-/A3 10.0 bp 40.0 bp 12.5 bp
II BBB+/Baa1 12.5 ▇▇ ▇▇.▇ ▇▇ ▇▇.▇ ▇▇
▇▇▇ BBB/Baa2 15.0 bp 72.5 bp 12.5 bp
IV BBB-/Baa3 17.5 bp 95.0 bp 25.0 bp
V Greater than BBB-/Baa3 30.0 ▇▇ ▇▇.▇ ▇▇ ▇▇.▇ ▇▇
(▇) The definition of "Pro Rata Share" in Section 1.1 is
amended by deleting the phrase "set forth under the name of such Lender on the
respective signature page for such Lender" and substituting therefor the phrase
"set opposite the name of such Lender on Schedule I hereto".
(e) Section 3.5(b) is amended by deleting therefrom the phrase
"a Utilization Fee equal to 0.125% times such aggregate outstanding principal
amount" and substituting therefor the phrase "a Utilization Fee computed at the
rate of the Utilization Fee Applicable Margin times such aggregate outstanding
principal amount".
(f) Section 3.20 is amended (i) by deleting the date "June 1,
2001" in subsection (a) thereof and substituting therefor the date "May 3,
2002", (ii) by deleting the figures "30" and "59" from subsection (a) thereof
and substituting therefor the figures "45" and "60", respectively, (iii) by
deleting the figure "15" from subsection (b) thereof and substituting therefor
the figure "20" and (iv) deleting from subsection (b) thereof the proviso at the
end of the second sentence.
(g) A new Section 3.22 is added to read as follows:
SECTION 3.22. INCREASE IN THE AGGREGATE COMMITMENTS. (a) The
Borrower may, at any time but in any event not more than once in any
calendar year prior to the Termination Date, by notice to the
Administrative Agent, request that the aggregate amount of the
Commitments be increased by integral multiples of $10,000,000 (each a
"COMMITMENT INCREASE") to be effective as of a date that is at least 90
days prior to the scheduled Termination Date then in effect (the
"INCREASE DATE") as specified in the related notice to the
Administrative Agent; PROVIDED, HOWEVER
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that (i) in no event shall the aggregate amount of the Commitments at
any time exceed $300,000,000 and (ii) on the date of any request by the
Borrower for a Commitment Increase and on the related Increase Date,
(x) the Borrower's senior unsecured long-term debt shall be rated
better than or equal to Baa3 from ▇▇▇▇▇'▇ and BBB- from S&P and (y) the
applicable conditions set forth in Section 4.2 shall be satisfied.
(b) The Administrative Agent shall promptly notify the Lenders
of a request by the Borrower for a Commitment Increase, which notice
shall include (i) the proposed amount of such requested Commitment
Increase, (ii) the proposed Increase Date and (iii) the date by which
Lenders wishing to participate in the Commitment Increase must commit
to an increase in the amount of their respective Commitments (the
"COMMITMENT DATE"). Each Lender that is willing to participate in such
requested Commitment Increase (each an "INCREASING LENDER") shall, in
its sole discretion, give written notice to the Administrative Agent on
or prior to the Commitment Date of the amount by which it is willing to
increase its Commitment. If the Lenders notify the Administrative Agent
that they are willing to increase the amount of their respective
Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall
be allocated among the Lenders willing to participate therein based on
the ratio of each existing Lender's proposed Commitment increase to the
aggregate of the proposed Commitment increases of all Lenders.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if
any, by which the Lenders are willing to participate in the requested
Commitment Increase. If the aggregate amount by which the Lenders are
willing to participate in any requested Commitment Increase on any such
Commitment Date is less than the requested Commitment Increase, then
the Borrower may extend offers to one or more Eligible Assignees to
participate in any portion of the requested Commitment Increase that
has not been committed to by the Lenders as of the applicable
Commitment Date; PROVIDED, however, that the Commitment of each such
Eligible Assignee shall be in a minimum amount of $5,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in
accordance with Section 3.22(b) (each such Eligible Assignee, an
"ASSUMING LENDER") shall become a Lender party to this Agreement as of
such Increase Date and the Commitment of each Increasing Lender for
such requested Commitment Increase shall be so increased by such amount
(or by the amount allocated to such Lender pursuant to the last
sentence of Section 3.22(b)) as of such Increase Date; PROVIDED,
HOWEVER, that the Administrative Agent shall have received on or before
such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board
of Directors of the Borrower or the Executive Committee of
such Board approving the Commitment Increase and the
corresponding modifications to this Agreement (B) a duly
executed consent to such Commitment Increase from each
Guarantor, (C) duly executed Revolving Notes to each Assuming
Lender and each Increasing Lender evidencing their respective
Revolving Loan Commitments and (D) an opinion of counsel for
the Borrower (which may be in-house counsel), in form and
substance satisfactory to the Administrative Agent, each
Assuming Lender and each Increasing Lender;
(ii) an assumption agreement from each Assuming
Lender, if any, in form and substance satisfactory to the
Borrower and the Administrative Agent (each an "ASSUMPTION
AGREEMENT"), duly executed by such Assuming Lender, the
Administrative Agent and the Borrower; and
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(iii) confirmation from each Increasing Lender of the
increase in the amount of its Commitment in a writing
satisfactory to the Borrower and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in
the immediately preceding sentence of this Section 3.22(d), the
Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00
P.M. (Florida time), by telecopier or telex, of the occurrence of the
Commitment Increase to be effected on such Increase Date and shall
record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.
(h) Section 4.2(c) is amended by deleting the date "December
25, 1999" and substituting therefor the date "December 30, 2000" and (ii) by
deleting the phrase "1999 fiscal year" and substituting therefor the phrase
"2000 fiscal year".
(i) Section 5.3 is amended (i) by deleting the phrase
"December 1999" and substituting therefor the phrase "December 2000", (ii) by
deleting the phrase "March, June and September 1999 and of March 2000" and
substituting therefor the phrase "March, June and September 2000" and (iii) by
deleting the date "December 25, 1999" and substituting therefor the date
"December 30, 2000".
(j) Section 5.7 is amended by deleting the date "December 25,
1999" and substituting therefor the date "December 30, 2000".
(k) Section 10.7 is amended (i) by deleting the phrase "State
of Illinois" in subsection (a) thereof and substituting therefor the phrase
"State of New York", (ii) by deleting the phrase "▇▇▇▇ County, Illinois" in
subsection (b) thereof and substituting therefor the phrase "New York County,
New York" and (iii) by deleting the phrase "the Northern District of Illinois"
in subsection (b) thereof and substituting therefor the phrase "the Southern
District of New York".
(l) A new Schedule I is added to read as set forth on Schedule
I to this Amendment and Restatement.
SECTION 2. CONDITIONS OF EFFECTIVENESS OF THIS AMENDMENT AND
RESTATEMENT. This Amendment and Restatement shall become effective as of the
date first above written (the "RESTATEMENT EFFECTIVE DATE") when and only if:
(a) The Administrative Agent shall have received counterparts
of this Amendment and Restatement executed by the Borrower and all of
the Initial Lenders or, as to any of the Initial Lenders, advice
satisfactory to the Administrative Agent that such Initial Lender has
executed this Amendment and Restatement.
(b) The Administrative Agent shall have received on or before
the Restatement Effective Date the following, each dated such date and
(unless otherwise specified below) in form and substance satisfactory
to the Administrative Agent and in sufficient copies for each Initial
Lender:
(i) The duly executed Revolving Notes evidencing the
Revolving Loan Commitments.
(ii) The duly executed Consent of each Guarantor in
the form attached to this Amendment and Restatement.
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(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Amendment and Restatement and the Revolving Notes and the
other documents to be delivered hereunder by the Borrower.
(iv) A certificate of the Secretary or Assistant
Secretary of the Borrower, attaching and certifying copies of
the resolutions of the board of directors of the Borrower,
authorizing the execution, delivery and performance of this
Amendment and Restatement.
(v) A favorable opinion of independent counsel of the
Borrower acceptable to the Administrative Agent, addressed to,
and in form and substance satisfactory to, the Administrative
Agent and each of the Initial Lenders.
(c) The representations and warranties contained in Article V
of the Existing Credit Agreement shall be correct on and as of the
Restatement Effective Date, before and after giving effect to the
Restatement Effective Date, as though made on and as of such date.
(d) No event shall have occurred and be continuing, or shall
occur as a result of the occurrence of the Restatement Effective Date,
that constitutes a Default.
SECTION 3. REFERENCE TO AND EFFECT ON THE EXISTING CREDIT
AGREEMENT AND THE NOTES. (a) On and after the effectiveness of this Amendment
and Restatement, each reference in the Existing Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Existing Credit Agreement, and each reference in the Notes and each other Credit
Document to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Existing Credit Agreement, shall mean and be a reference
to the Existing Credit Agreement, as amended by this Amendment and Restatement.
(b) The Existing Credit Agreement and the Notes, as
specifically amended by this Amendment and Restatement, are and shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed.
(c) Without limiting any of the other provisions of the
Existing Credit Agreement, as amended by this Amendment and Restatement, any
references in the Existing Credit Agreement to the phrases "Closing Date", "on
the date hereof", "on the date of this Agreement" or words of similar import
shall mean and be a reference to the date of the Existing Credit Agreement
(which is June 2, 2000).
SECTION 4. COSTS AND EXPENSES. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and Restatement,
the Notes and the other documents to be delivered hereunder (including, without
limitation, the reasonable and documented fees and expenses of counsel for the
Administrative Agent with respect hereto and thereto) in accordance with the
terms of Section 10.4 of the Existing Credit Agreement.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment and
Restatement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Amendment and Restatement by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment and Restatement.
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SECTION 6. GOVERNING LAW. This Amendment and Restatement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE BORROWER
OFFICE DEPOT, INC.
By
---------------------------------
Name:
Title:
THE AGENT
SUNTRUST BANK,
as Administrative Agent
By
---------------------------------
Name:
Title:
THE INITIAL LENDERS
Joint Lead Arrangers
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
BANK ONE, NA
By_______________________________
Name:
Title:
CO-DOCUMENTATION AGENTS
BNP PARIBAS
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
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▇▇▇▇▇ FARGO BANK, N.A.
By
---------------------------------
Name:
Title:
MANAGING AGENTS
FIRST UNION NATIONAL BANK
By
---------------------------------
Name:
Title:
FLEET NATIONAL BANK
By
---------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND
By
---------------------------------
Name:
Title:
Lender
SUNTRUST BANK
By
---------------------------------
Name:
Title:
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SCHEDULE I TO THE AMENDMENT AND RESTATEMENT
COMMITMENTS AND PRO RATA SHARES
Name of Lender Commitment Pro Rata Share
-------------- ---------- --------------
Bank One, NA $ 40,000,000 15.69%
BNP Paribas $ 40,000,000 15.69%
Citibank, N.A. $ 40,000,000 15.69%
First Union National Bank $ 25,000,000 9.80%
Fleet National Bank $ 25,000,000 9.80%
The Royal Bank of Scotland $ 30,000,000 11.76%
Suntrust Bank $ 20,000,000 7.84%
▇▇▇▇▇ Fargo Bank, N.A. $ 35,000,000 13.73%
Total of Commitments $255,000,000 100.00%
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CONSENT
Dated as of May 4, 2001
The undersigned, each a Guarantor under the Subsidiary
Guaranty and the Contribution Agreement, each dated _______________, 2000
(collectively, the "GUARANTY AGREEMENTS") in favor of the Administrative Agent[,
for its benefit and the benefit of] the Lenders parties to the Existing Credit
Agreement referred to in the foregoing Amendment and Restatement, hereby
consents to such Amendment and Restatement and hereby confirms and agrees that
notwithstanding the effectiveness of such Amendment and Restatement, each
Guaranty Agreement is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects.
▇▇▇▇▇▇▇ INC.
By
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Name:
Title:
▇▇▇▇▇▇▇ OFFICE PRODUCTS CORPORATION
By
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Name:
Title:
OD INTERNATIONAL, INC.
By
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Name:
Title:
ODNV, INC.
By
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Name:
Title:
THE OFFICE CLUB, INC.
By
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Name:
Title:
OFFICE DEPOT OF TEXAS, L.P.
By
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Name:
Title:
VIKING OFFICE PRODUCTS, INC.
By
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Name:
Title:
