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Exhibit 10.19
FIRST AMENDMENT
TO
364 DAY REVOLVING CREDIT AGREEMENT
This First Amendment (the "Amendment") to 364 Day Revolving Credit
Agreement, dated as of December 21, 2000, is entered into by and between Office
Depot, Inc., a Delaware corporation ("Borrower") and the various financial
institutions party to the Credit Agreement (hereinafter defined) which execute
one or more counterparts of this Amendment and which collectively constitute the
Required Lenders (as defined in the Credit Agreement.)
WITNESSETH:
WHEREAS, the Borrower has heretofore entered into a 364 Day Revolving
Credit Agreement, dated as of June 2, 2000, with SunTrust Bank, a national
banking association ("SunTrust"), Bank of America, N.A., a national banking
association ("Bank of America"), Citibank, N.A., a national banking association
("Citibank") and Bank One, a national banking association ("Bank One"), and the
other financial institutions from time to time party thereto (collectively, the
"Lenders" and, individually, a "Lender"), SunTrust as Administrative Agent, Bank
of America as Syndication Agent, Bank One as Documentation Agent and Citibank as
Managing Agent for the Lenders (as heretofore amended, modified or supplemented,
the "Credit Agreement"; capitalized terms used herein and not otherwise defined
herein having the meanings assigned thereto in the Credit Agreement);
WHEREAS, the Borrower has requested that the Lenders agree to certain
amendments to the Credit Agreement;
WHEREAS, subject to the terms and conditions set forth herein, the
Lenders executing this Amendment are willing to undertake an amendment to the
Credit Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound hereby, the Borrower and the undersigned Lenders hereby agree as
follows:
SECTION 1. AMENDMENT. Upon the satisfaction by the Borrower of the
conditions precedent set forth in Section 2 below, and in reliance on the
warranties of the Borrower set forth in Section 3 below, the term "Fixed Charge
Coverage Ratio" contained in Section 1.1 of the Credit Agreement is hereby
amended in its entirety to read as follows:
" "Fixed Charge Coverage Ratio" shall mean, as at the
end of any fiscal period of Borrower, the ratio of (A)
Consolidated EBITR for such fiscal period to (B) the sum of
(i) Consolidated Interest Expense plus (ii) Consolidated
Rental Expense plus (iii) any interest and other continuing
program fees (excluding initial closing fees) related to an
accounts receivable securitization program (including any such
interest or fees for which the Borrower or any Subsidiary is
liable arising in connection with any private label credit
card program), each for such fiscal period; provided that for
purposes of any relevant period there shall be
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added to Consolidated EBITR for purposes of the determination
of the Fixed Charge Coverage Ratio an amount, not to exceed
$350,000,000, equal to the Borrower's restructuring charges
announced on January 3, 2001 (the "Restructuring Charges")."
SECTION 2. CONDITIONS. As conditions precedent to the effectiveness of
this Amendment, (i) the Borrower shall have delivered to the Administrative
Agent this Amendment, duly executed and delivered, and such other documents as
the Required Lenders or the Administrative Agent may reasonably request, (ii)
the Borrower shall have paid to Bank of America such fees with respect hereto as
separately agreed to between such parties, (iii) the Borrower shall have paid to
the Administrative Agent for the account of each Lender executing this Amendment
on or prior to the date hereof a consent fee equal to .10% of such Lender's
Commitment and (iv) the Administrative Agent shall have received executed
counterparts of this Amendment from the Required Lenders.
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the Lenders to
enter into this Amendment, the Borrower hereby represents and warrants to the
Lenders as of the date hereof that:
3.1 The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct
in all material respects on and as of the date hereof except
for representations and warranties that speak as of a
particular date, in which case such representations and
warranties are true as of such date.
3.2 After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
SECTION 4. GENERAL.
4.1 Waiver of Certain Defaults. The Required Lenders hereby waive,
subject to the effectiveness of this Amendment, any Event of
Default which may exist under Section 8.6 of the Credit
Agreement solely as a result of the Restructuring Charges
causing a breach of the "Fixed Charge Coverage Ratio" covenant
set forth in any agreement of one or more of the Consolidated
Companies regarding Indebtedness, including without limitation
the guaranties under the Existing Japanese Loan Agreements;
provided that the foregoing waiver shall be immediately
effective but shall be subject to the conditions subsequent
that (i) effective waivers and/or amendments similar to those
contained herein are in place and effective under such
agreements by no later than the close of business on January
31, 2001 and (ii) no such other Indebtedness shall be
accelerated (and this waiver shall terminate if condition (i)
is not satisfied in a timely manner or if such other
Indebtedness shall be accelerated). The foregoing waiver is
given in this instance only, shall not be construed as a
consent to, or waiver or approval of, any violation of, or
deviation from, any other term or condition of the Credit
Agreement or any other Credit Document and shall not be
construed to evidence
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the willingness of the Required Lenders to give any other or
additional consent, waiver or approval, whether in similar or
different circumstances.
4.2 Reservation of Rights. The Borrower acknowledges and agrees
that the execution and delivery of this Amendment shall not be
deemed (i) to create a course of dealing or otherwise obligate
the Lenders to forbear or execute similar amendments under the
same or similar circumstances in the future, or (ii) as a
waiver by the Lenders of any covenant, condition, term or
provision of the Credit Agreement or any of the other Credit
Documents except as expressly provided herein, and the failure
of the Lenders to require strict performance by the Borrower
or any other Credit Party of any provision thereof shall not
waive, affect or diminish any right of the Lenders to
thereafter demand strict compliance therewith. The Lenders
hereby reserve all rights granted under the Credit Agreement,
the other Credit Documents and this Amendment.
4.3 Full Force and Effect. As hereby modified, the Credit
Agreement and each of the other Credit Documents shall remain
in full force and effect and each is hereby ratified, approved
and confirmed in all respects.
4.4 Affirmation. The Borrower hereby agrees to pay on demand all
reasonable costs and expenses of the Lenders in connection
with the preparation, execution and delivery of this Amendment
and all instruments and documents delivered in connection
herewith.
4.5 Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the Borrower, the Lenders
and the respective successors and assigns of the Borrower and
the Lenders.
4.6 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same Amendment.
4.7 Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE INTERNAL LAWS (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF
ILLINOIS.
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IN WITNESS WHEREOF, the Borrower and the Lenders have executed this
Amendment as of the 21st day of December, 2000.
BORROWER:
OFFICE DEPOT, INC.
By: /s/ JEFFREY H. AIKEN
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Name: JEFFREY H. AIKEN
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Title: SENIOR VICE PRESIDENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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LENDERS:
SUNTRUST BANK, individually and as
Administrative Agent
By: /s/ W. DAVID WISDOM
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Name: W. DAVID WISDOM
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Title: Vice President
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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BANK OF AMERICA, N.A.
By: /s/ TIMOTHY H. SPANOS
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Name: TIMOTHY H. SPANOS
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Title: Managing Director
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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CITIBANK, N.A.
By: /s/ JOHN F. HEUSS
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Name: JOHN F. HEUSS
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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Bank One, NA
By: /s/ VINCENT R. HENCHEK
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Name: VINCENT R. HENCHEK
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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FIRST UNION NATIONAL BANK
By: /s/ JOAN ANDERSON
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Name: JOAN ANDERSON
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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CIBC INC.
By: /s/ DOMINIC SORRESSO
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Name: DOMINIC SORRESSO
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Title: EXECUTIVE DIRECTOR
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CIBC WORLD MARKETS CORP., AS AGENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ BERNARDO E. CORREA-HENSCHKE
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Name: BERNARDO E. CORREA-HENSCHKE
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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WELLS FARGO BANK
By: /s/ WILLIAM J. DARBY
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Name: WILLIAM J. DARBY
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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BNP PARIBAS
By: /s/ MIKE SHRYOCK
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Name: MIKE SHRYOCK
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Title: VICE PRESIDENT
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By: /s/ JOHN STACY
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Name: JOHN STACY
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Title: MANAGING DIRECTOR
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FIRST AMENDMENT TO 364 DAY REVOLVING CREDIT AGREEMENT
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STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
AFFIDAVIT OF OUT-OF-STATE EXECUTION
The undersigned affiant, being first duly sworn upon my oath, depose and say:
1. That on the 27TH day of December, 2000, I executed that
certain Amendment Agreement (the "Amendment") on behalf of OFFICE DEPOT, INC.
2. That the execution of the Amendment took place in the County
of New York, in City of New York, in the State of New York.
FURTHER AFFIANT SAYETH NOT.
AFFIANT: /s/ Jeffrey H. Aiken
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Jeffrey H. Aiken, Senior Vice President
Office Depot, Inc.
Sworn to and subscribed before me this 27th day of December, 2000 by Jeffrey
H. Aiken, Senior Vice-President of Office Depot, Inc. Who personally appeared
before me in the above referenced location, and is personally known to me or
produced driver's license as identification.
Notary:/s/ Kathleen B. Patton
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[NOTARIAL SEAL] Print Name:Kathleen B. Patton
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Notary Public, State of New York
My Commission expires:
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KATHLEEN BENDER PATTON
Notary Public, State of New York
No. 02BE5026754
Qualified in New York County
Commission Expires April 25, 2002