EX-10.1 3 a2088378zex-10_1.txt EXHIBIT 10-1 REVOLVING CREDIT AGREEMENT dated as of June 21, 2002 STAPLES, INC. THE LENDERS NAMED HEREIN, FLEET NATIONAL BANK, AS AGENT, CITICORP USA, INC. AND WACHOVIA BANK, NATIONAL ASSOCIATION AS CO-SYNDICATION AGENTS, AND HSBC BANK USA AND JPMORGAN CHASE BANK, AS CO-DOCUMENTATION AGENTS WITH FLEET SECURITIES, INC. HAVING ACTED AS ARRANGER

TABLE OF CONTENTS PAGE Section 1. DEFINITIONS AND RULES OF INTERPRETATION................................1 Section 1.1. DEFINITIONS...................................................1 Section 1.2. RULES OF INTERPRETATION......................................15 Section 2. THE REVOLVING CREDIT FACILITY.........................................16 Section 2.1. COMMITMENT TO LEND SYNDICATED LOANS..........................16 Section 2.2. REQUESTS FOR SYNDICATED LOANS................................16 Section 2.3. COMPETITIVE BID LOANS........................................17 Section 2.3.1. COMPETITIVE BID BORROWINGS......................17 Section 2.3.2. MAXIMUM COMPETITIVE BID LOANS; FUNDING LOSSES...20 Section 2.3.3. REPAYMENT OF COMPETITIVE BID LOANS..............20 Section 2.4. FUNDS FOR REVOLVING CREDIT LOANS.............................20 Section 2.4.1. FUNDING PROCEDURES..............................20 Section 2.4.2. ADVANCES BY AGENT...............................20 Section 2.5. THE NOTES....................................................21 Section 2.6. REDUCTION OF TOTAL COMMITMENT................................22 Section 2.7. MATURITY AND OTHER MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS.....................................................22 Section 2.8. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS................22 Section 2.9. INTEREST ON REVOLVING CREDIT LOANS...........................23 Section 2.10. CONVERSION OPTIONS...........................................23 Section 2.10.1. CONVERSION TO DIFFERENT TYPE OF SYNDICATED LOAN..23 Section 2.10.2. CONTINUATION OF TYPE OF SYNDICATED LOAN..........23 Section 2.10.3. EURODOLLAR RATE LOANS............................24 Section 2.11. THE SWING LINE..............................................24 Section 2.11.1. THE SWING LINE LOANS.............................24 Section 2.11.2. NOTICE OF BORROWING..............................24 Section 2.11.3. INTEREST ON SWING LINE LOANS.....................25 Section 2.11.4. REPAYMENT OF SWING LINE LOANS....................25 Section 2.11.5. THE SWING LINE NOTE..............................26 Section 2.12. REQUEST FOR EXTENSION OF MATURITY DATE......................26 Section 3. LETTERS OF CREDIT.....................................................26 Section 3.1. LETTERS OF CREDIT............................................26 Section 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.....................27 Section 3.3. LETTER OF CREDIT LOAN OBLIGATIONS ABSOLUTE...................27 Section 3.4. OBLIGATIONS OF THE LENDERS...................................28 Section 3.5. LETTER OF CREDIT FEE.........................................29 Section 4. CERTAIN GENERAL PROVISIONS; FEES......................................29 Section 4.1. CLOSING AND AGENT FEES.....................................29 Section 4.2. OTHER FEES.................................................29 Section 4.2.1. FACILITY FEE....................................29 Section 4.2.2. UTILIZATION FEE.................................29 Section 4.3. FUNDS FOR PAYMENTS.........................................30 Section 4.3.1. PAYMENTS TO AGENT...............................30

-ii- Section 4.3.2. NO OFFSET, ETC..................................30 Section 4.3.3. WITHHOLDING.....................................30 Section 4.4. COMPUTATIONS...............................................31 Section 4.5. INABILITY TO DETERMINE EURODOLLAR RATE.....................31 Section 4.6. ILLEGALITY.................................................31 Section 4.7. ADDITIONAL COSTS, ETC......................................32 Section 4.8. CAPITAL ADEQUACY...........................................33 Section 4.9. CERTIFICATE................................................33 Section 4.10. INDEMNITY..................................................33 Section 4.11. INTEREST ON OVERDUE AMOUNTS................................34 Section 4.12. REPLACEMENT OF INDIVIDUAL LENDERS..........................34 Section 4.13. GUARANTIES.................................................34 SECTION 5. REPRESENTATIONS AND WARRANTIES........................................35 Section 5.1. CORPORATE AUTHORITY........................................35 Section 5.1.1. INCORPORATION; GOOD STANDING....................35 Section 5.1.2. AUTHORIZATION...................................35 Section 5.1.3. ENFORCEABILITY..................................35 Section 5.2. GOVERNMENTAL APPROVALS.....................................36 Section 5.3. TITLE TO PROPERTIES; LEASES................................36 Section 5.4. FINANCIAL STATEMENTS; FISCAL YEAR..........................36 Section 5.5. NO MATERIAL CHANGES, ETC...................................36 Section 5.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC.......................37 Section 5.7. LITIGATION.................................................37 Section 5.8. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC...............37 Section 5.9. TAX STATUS.................................................37 Section 5.10. NO EVENT OF DEFAULT........................................37 Section 5.11. HOLDING COMPANY AND INVESTMENT COMPANY ACTS................37 Section 5.12. EMPLOYEE BENEFIT PLANS.....................................37 Section 5.12.1. IN GENERAL.......................................37 Section 5.12.2. TERMINABILITY OF WELFARE PLANS...................38 Section 5.12.3. GUARANTEED PENSION PLANS.........................38 Section 5.12.4. MULTIEMPLOYER PLANS..............................38 Section 5.13. REGULATIONS U AND X, ETC..................................38 Section 5.14. ENVIRONMENTAL COMPLIANCE..................................38 Section 5.15. SUBSIDIARIES, ETC.........................................39 SECTION 6. AFFIRMATIVE COVENANTS OF THE BORROWER.................................39 Section 6.1. PUNCTUAL PAYMENT...........................................40 Section 6.2. MAINTENANCE OF OFFICE......................................40 Section 6.3. RECORDS AND ACCOUNTS.......................................40 Section 6.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.........40 Section 6.5. NOTICES....................................................41 Section 6.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES.................41 Section 6.7. INSURANCE..................................................42 Section 6.8. TAXES......................................................42 Section 6.9. INSPECTION OF PROPERTIES AND BOOKS, ETC....................42 Section 6.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.....42 Section 6.11. EMPLOYEE BENEFIT PLANS.....................................43 Section 6.12. USE OF PROCEEDS............................................43 -iii- Section 6.13. LICENSES AND PERMITS.......................................43 Section 6.14. FURTHER ASSURANCES.........................................43 Section 7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER............................43 Section 7.1. RESTRICTIONS ON INDEBTEDNESS ..............................43 Section 7.2. RESTRICTIONS ON LIENS......................................45 Section 7.3. RESTRICTIONS ON INVESTMENTS................................47 Section 7.4. DISTRIBUTIONS..............................................48 Section 7.5. EMPLOYEE BENEFIT PLANS.....................................48 Section 7.6. MERGER AND CONSOLIDATION; ACQUISITIONS.....................48 Section 7.7. DISPOSITION OF ASSETS AND SALE-LEASEBACK TRANSACTIONS......49 Section 7.8. SUBORDINATED DEBT..........................................49 Section 8. FINANCIAL COVENANTS OF THE BORROWER...................................49 Section 8.1. FIXED CHARGE COVERAGE RATIO................................49 Section 8.2. ADJUSTED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO.........50 Section 9. CLOSING CONDITIONS....................................................50 Section 9.1. LOAN DOCUMENTS............................................50 Section 9.2. CERTIFIED COPIES OF CHARTER DOCUMENTS......................50 Section 9.3. CORPORATE ACTION...........................................50 Section 9.4. INCUMBENCY CERTIFICATE.....................................50 Section 9.5. OPINION OF COUNSEL.........................................50 Section 9.6. PAYMENT OF FEES............................................50 Section 9.7. TERMINATION OF EXISTING CREDIT AGREEMENTS..................51 Section 9.8. COMPLIANCE CERTIFICATE.....................................51 Section 9.9. UCC SEARCH RESULTS.........................................51 Section 9.10. CERTIFICATE OF INSURANCE...................................51 Section 9.11. NO MATERIAL ADVERSE CHANGE.................................51 Section 10. CONDITIONS TO ALL BORROWINGS.........................................51 Section 10.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.................51 Section 10.2. NO LEGAL IMPEDIMENT.......................................51 Section 10.3. GOVERNMENTAL REGULATION...................................51 Section 10.4. PROCEEDINGS AND DOCUMENTS.................................52 Section 11. EVENTS OF DEFAULT; ACCELERATION; ETC.................................52 Section 11.1. EVENTS OF DEFAULT AND ACCELERATION........................52 Section 11.2. TERMINATION OF COMMITMENTS................................55 Section 11.3. REMEDIES..................................................55 Section 12. SETOFF...............................................................55 Section 13. THE AGENT............................................................56 Section 13.1. AUTHORIZATION.............................................56 Section 13.2. EMPLOYEES AND AGENTS......................................57 Section 13.3. NO LIABILITY..............................................57 Section 13.4. NO REPRESENTATIONS........................................57 Section 13.4.1. GENERAL..........................................57 Section 13.4.2. CLOSING DOCUMENTATION, ETC.......................57 -iv- Section 13.5. PAYMENTS..................................................58 Section 13.5.1. PAYMENTS TO AGENT................................58 Section 13.5.2. DISTRIBUTION BY AGENT............................58 Section 13.5.3. DELINQUENT LENDERS...............................58 Section 13.6. HOLDERS OF NOTES..........................................58 Section 13.7. INDEMNITY.................................................58 Section 13.8. AGENT AS LENDER; ETC......................................59 Section 13.9. RESIGNATION...............................................59 Section 13.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT............59 Section 14. EXPENSES.............................................................59 Section 15. INDEMNIFICATION......................................................60 Section 16. SURVIVAL OF COVENANTS, ETC...........................................60 Section 17. ASSIGNMENT AND PARTICIPATION.........................................61 Section 17.1. CONDITIONS TO ASSIGNMENT BY LENDERS.......................61 Section 17.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS........................................61 Section 17.3. REGISTER..................................................62 Section 17.4. NEW NOTES.................................................62 Section 17.5. PARTICIPATIONS............................................62 Section 17.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER......63 Section 17.7. MISCELLANEOUS ASSIGNMENT PROVISIONS.......................63 Section 17.8. ASSIGNMENT BY BORROWER....................................64 Section 18. NOTICES, ETC.........................................................64 Section 19. GOVERNING LAW........................................................64 Section 20. HEADINGS.............................................................65 Section 21. COUNTERPARTS.........................................................65 Section 22. ENTIRE AGREEMENT, ETC................................................65 Section 23. WAIVER OF JURY TRIAL.................................................65 Section 24. CONSENTS, AMENDMENTS, WAIVERS, ETC...................................65 Section 25. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION........................66 Section 25.1. CONFIDENTIALITY...........................................66 Section 25.2. PRIOR NOTIFICATION........................................67 Section 25.3. OTHER.....................................................67 Section 26. SEVERABILITY.........................................................67 -v- EXHIBITS AND SCHEDULES Exhibit A Form of Loan Request Exhibit B Form of Competitive Bid Quote Request Exhibit C Form of Invitation for Competitive Bid Quotes Exhibit D-1 Form of Competitive Bid Quote Exhibit D-2 Form of Notice of Competitive Bid Borrowing Exhibit D-3 Form of Notice of Competitive Bid Loans Exhibit E-1 Form of Syndicated Note Exhibit E-2 Form of Competitive Bid Note Exhibit E-3 Form of Swing Line Note Exhibit F Form of Guaranty Exhibit G Form of Compliance Certificate Exhibit H Form of Assignment and Acceptance Exhibit I Form of Swing Line Loan Request Schedule 1 Lenders Schedule 2 Guarantors Schedule 5.3 Title to Properties, Leases Schedule 5.7 Litigation Schedule 5.9 Taxes Schedule 5.12 Pension Liabilities Schedule 5.14 Environmental Compliance Schedule 5.15(a) Subsidiaries Schedule 5.15(b) Joint Ventures and Partnerships Schedule 5.15(c) Equity Interests of 50% or Less Schedule 7.1 Existing Indebtedness Schedule 7.2 Existing Liens Schedule 7.3 Existing Investments REVOLVING CREDIT AGREEMENT This REVOLVING CREDIT AGREEMENT, dated as of June 21, 2002, is by and among (a) STAPLES, INC. (the "BORROWER"), a Delaware corporation having its principal place of business at 500 Staples Drive, Framingham, MA 01701, (b) FLEET NATIONAL BANK and the other lending institutions listed on SCHEDULE 1 attached hereto (the "LENDERS"), (c) FLEET NATIONAL BANK, as administrative agent (in such capacity, the "AGENT") for the Lenders, (d) CITICORP USA, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION, as co-syndication agents for the Lenders (collectively the "CO-SYNDICATION AGENTS"), and (e) HSBC BANK USA and JPMORGAN CHASE BANK, as co-documentation agents for the Lenders (collectively the "CO-DOCUMENTATION AGENTS"). SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION. SECTION 1.1. DEFINITIONS. The following terms shall have the meanings set forth in this Section 1 or elsewhere in the provisions of this Credit Agreement referred to below: ADJUSTMENT DATE. The date which is three (3) Business Days after a Compliance Certificate is delivered by the Borrower pursuant to Section 6.4(c) hereof. AFFILIATE. Any Person that would be considered to be an affiliate of a Person under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the Closing Date, if such Person were issuing securities. AGENT. As defined in the preamble hereto. AGENTS. Collectively, (a) the Agent, (b) the Co-Syndication Agents and (c) the Co-Documentation Agents. AGENT FEES. See Section 4.1 hereof. AGENT'S HEAD OFFICE. The Agent's office located at 100 Federal Street, Boston, Massachusetts 02110, or at such other location as the Agent may designate from time to time. AGENT'S SPECIAL COUNSEL. Bingham Dana LLP or such other counsel as may be approved by the Agent. APPLICABLE MARGIN. The Applicable Margin shall be in effect for each period commencing on an Adjustment Date through the date immediately preceding the next Adjustment Date (each a "RATE ADJUSTMENT PERIOD") based on a determination of the Fixed Charge Coverage Ratio and the Senior Debt Rating. The Fixed Charge Coverage Ratio shall be determined as at the end of the fiscal period for which financial statements and a Compliance Certificate have most recently been delivered to the Agent pursuant to Section 6.4 and the Senior Debt Rating shall be determined as of the last day of the preceding Rate Adjustment Period. The Applicable Margin shall be the applicable rate PER ANNUM, corresponding to the lower of the Levels set forth in the table below (with Level I being the lowest level and Level VI being the highest level) corresponding to the Fixed Charge Coverage Ratio or the Senior Debt Rating, PROVIDED THAT if the Fixed Charge Coverage Ratio and Senior Debt Rating are more than one Level apart, the Applicable Margin shall be one Level below the higher of the two applicable Levels. In the event -2- that the Senior Debt Ratings assigned by Moody's and S&P are not equivalent, the following criteria shall determine which Level shall be applicable to the Senior Debt Rating: (a) if the Senior Debt Ratings are one Level apart, the Level applicable to the Senior Debt Rating shall be the lower of the two Levels and (b) if the Senior Debt Ratings are more than one Level apart, the Level applicable to the Senior Debt Rating shall be one Level below the higher of the two Levels. For purposes of clarity, the parties hereto acknowledge that (i) the Applicable Margin with respect to Eurodollar Rate Loans shall be the rate per annum set forth in column D in the table below, (ii) the Facility Fee shall be the rate per annum set forth in column E in the table below and (iii) the Utilization Fee shall be the rate per annum set forth in column F.

------------- ------------------- ------------------------ ---------------- ----------------- -------------------- A B C D E F ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- LEVEL FIXED CHARGE SENIOR DEBT RATING EURODOLLAR FACILITY FEE UTILIZATION FEE COVERAGE RATIO RATE LOANS ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- I greater than or equal to 2.75:1 S&P: A- 0.350% 0.100% 0.050% Moody's: A3 or better ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- II greater than or equal to 2.50:1 S&P: BBB+ 0.525% 0.125% 0.100% and Moody's: Baa1 or better less than 2.75:1 ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- III greater than or equal to 2.25:1 S&P: BBB 0.650% 0.150% 0.075% and Moody's: Baa2 or better less than 2.50:1 ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- IV greater than or equal to 2.00:1 S&P: BBB- 0.800% 0.200% 0.125% and Moody's: Baa3 or better less than 2.25:1 ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- V greater than or equal to 1.75:1 S&P: BB+ 0.950% 0.300% 0.250% and Moody's: Ba1 or better less than 2.00:1 ------------- ------------------- ------------------------ ---------------- ----------------- -------------------- VI less than 1.75:1 lower than 1.100% 0.350% 0.300% S&P: BB+ Moody's: Ba1 or unrated ------------- ------------------- ------------------------ ---------------- ----------------- --------------------

Notwithstanding the foregoing, (A) for the period commencing on the Closing Date through the date immediately preceding the first Adjustment Date to occur after the date which is six months from the Closing Date, the Applicable Margin shall be that corresponding to Level III in the table above, and (B) if the Borrower fails to deliver any Compliance Certificate pursuant to Section 6.4(c) hereof then, for the period commencing on the date such Compliance Certificate was due through the date immediately preceding the Adjustment Date that occurs immediately following the date on which such Compliance Certificate is delivered, the Applicable Margin shall be the Applicable Margin corresponding to Level VI above. APPLICABLE PENSION LEGISLATION. At any time, any pension or retirement benefits legislation (be it national, federal, provincial, territorial or otherwise) then applicable to the Borrower or any of its Subsidiaries. -3- APPROVED FUND. Any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. ARRANGER. Fleet Securities, Inc., a Massachusetts corporation. ASSIGNMENT AND ACCEPTANCE. See Section 17.1 hereof. BALANCE SHEET DATE. February 2, 2002. BASE RATE LOANS. Any Revolving Credit Loans bearing interest calculated by reference to the Prime Rate. BORROWER. As defined in the preamble hereto. BUSINESS DAY. Any day on which banking institutions in Boston, Massachusetts and New York, New York, are open for the transaction of banking business and, in the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day. CAPITAL STOCK. With respect to any corporation, partnership, trust, unincorporated association, joint venture, limited liability company, or other legal or business entity, any and all shares, interests, participations or other equivalent (however designated) of capital stock of such entity, any and all limited or general partnership interests and equivalent ownership interests in such entity, any and all warrants and options to purchase any of the foregoing, and any securities convertible into any of the foregoing. CAPITALIZED LEASES. Leases under which the Borrower or any of its Subsidiaries is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP. CERCLA. The Comprehensive Environmental Response, Compensation and Liability Act of 1980. CLOSING DATE. The first date on which the conditions set forth in Section 8 hereof have been satisfied, which shall be no later than June 30, 2002. CODE. The Internal Revenue Code of 1986. CO-DOCUMENTATION AGENTS. As defined in the preamble hereto. COMMITMENT. The agreement of each Lender, subject to the terms and conditions of this Credit Agreement, to make Revolving Credit Loans to, and to participate in Swing Line Loans and the issuance, extension and renewal of Letters of Credit for the account of the Borrower. COMMITMENT AMOUNT. With respect to each Lender, the amount of such Lender's Commitment set forth on SCHEDULE 1 attached hereto, as the same may be reduced from time to time in accordance with the terms of this Credit Agreement; or if the Total Commitment is terminated pursuant to the provisions hereof, zero. -4- COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set forth on SCHEDULE 1 attached hereto as such Lender's percentage of the Total Commitment. COMPETITIVE BID LOAN(S). A borrowing hereunder consisting of one or more revolving credit loans made by any of the Lenders whose offer to make a revolving credit loan as part of such borrowing has been accepted by the Borrower under the auction bidding procedure described in Section 2.3 hereof. COMPETITIVE BID NOTE. See Section 2.5(b) hereof. COMPETITIVE BID QUOTE. An offer by a Lender to make a Competitive Bid Loan in accordance with Section 2.3 ereof. COMPETITIVE BID QUOTE REQUEST. See Section 2.3.1(b) hereof. COMPETITIVE BID RATE. See Section 2.3.1(d)(ii)(C) hereof. COMPETITIVE BID SUBLIMIT. $150,000,000. COMPLIANCE CERTIFICATE. See Section 6.4(c) hereof. CONFIDENTIAL INFORMATION. All information relating to the Borrower or any of its Subsidiaries that is labeled by the Borrower or such Subsidiary as confidential at the time such information is supplied by the Borrower or such Subsidiary to a Lender, other than information which (a) is public knowledge or generally available to the public, or (b) is obtained by any of the Lenders, whether prior to or after disclosure to such Lender by the Borrower or any of its Subsidiaries, from a source other than the Borrower or any of its Subsidiaries, provided that such information is not known by such Lender to have been disclosed by any party in violation of a confidentiality agreement with the Borrower or any of its Subsidiaries, any other obligation of nondisclosure with respect to the Borrower or any of its Subsidiaries or any applicable statutory or regulatory limitation imposed on the disclosure of such information. CONSOLIDATED OR CONSOLIDATED. With reference to any term defined herein, shall mean that term as applied to the accounts of the Borrower and its Subsidiaries, consolidated in accordance with GAAP. CONSOLIDATED ADJUSTED FUNDED DEBT. With respect to the Borrower and its Subsidiaries, as at any date of determination, on a consolidated basis, the aggregate of (a) Consolidated Total Funded Debt as of such date PLUS (b) (i) Rental Expense for the period of twelve consecutive months then ended MULTIPLIED BY (ii) eight (8). CONSOLIDATED EBIT. Consolidated net income (or deficit) of the Borrower and its Subsidiaries, after deducting all expenses and other proper charges other than interest expense, taxes and any noncash nonrecurring charges, and excluding (a) all extraordinary and nonrecurring items of income but not losses (except to the extent such extraordinary losses are offset by such extraordinary income) and (b) all income or loss from any corporation, partnership, limited liability company, joint venture or other entity in which the Borrower or any of its Subsidiaries holds not more than a fifty percent (50%) ownership interest, as determined in accordance with GAAP; PROVIDED that (i) there shall be excluded in calculating consolidated net income (or deficit) for purposes of this definition any noncash losses attributable to the use of a fair value -5- methodology for recognition and measurement of impairment of goodwill not identified with impaired assets in accordance with Accounting Principles Board Opinion No. 142 and (ii) for purposes of calculating the Obligor Group Requirement, the Persons included in the calculation of Consolidated EBIT shall be as set forth in the definition of Obligor Group Requirement. CONSOLIDATED TOTAL ASSETS. All assets of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP; PROVIDED that for purposes of calculating the Obligor Group Requirement, the Persons included in the calculation of Consolidated Total Assets shall be as set forth in the definition of the Obligor Group Requirement. CONSOLIDATED TOTAL FUNDED DEBT. With respect to the Borrower and its Subsidiaries, as at any date of determination, on a consolidated basis, the aggregate (without duplication) of (a) all outstanding Indebtedness of the Borrower and its Subsidiaries relating to or in respect of (i) the borrowing of money or the obtaining of credit, including the issuance of notes or bonds and standby letters of credit outstanding but excluding documentary letters of credit, (ii) the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business), (iii) any Synthetic Leases or any Capitalized Leases, and (iv) the Securitization, PLUS (b) all Indebtedness of the type referred to in clause (a) of another Person guaranteed by the Borrower or any of its Subsidiaries. CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate amount of interest required to be paid or accrued by the Borrower and its Subsidiaries during such period on all Indebtedness of the Borrower and its Subsidiaries outstanding during all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of Capitalized Leases and Synthetic Leases, and including facility fees, commitment fees, usage fees, agency fees, balance deficiency fees, and similar fees or expenses in connection with the borrowing of money, as determined in accordance with GAAP. CONTINGENT LIABILITIES. Any guaranties, endorsements, obligations to reimburse the issuer in respect of any letters of credit, agreements to purchase or provide funds for the payment of obligations of others, or other liabilities which would be classified as contingent in accordance with GAAP consistently applied, excluding, however, (a) product warranties given in the ordinary course of business, (b) endorsements of checks or other negotiable instruments for deposit or collection in the ordinary course of business, and (c) reimbursement obligations in respect of documentary trade letters of credit. CONVERSION REQUEST. A notice given by the Borrower to the Agent of the Borrower's election to convert or continue a Syndicated Loan in accordance with Section 2.10 hereof. CO-SYNDICATION AGENTS. As defined in the preamble hereto. CREDIT AGREEMENT. This Revolving Credit Agreement, including the Schedules and Exhibits hereto. DEFAULT. See Section 11.1 hereof. DELINQUENT LENDER. See Section 13.5.3 hereof. -6- DISTRIBUTION. The declaration or payment of any dividend on or in respect of any shares of any class of Capital Stock of the Borrower, other than dividends payable solely in shares of common stock of the Borrower; the purchase, redemption, or other retirement of any shares of any class of Capital Stock of the Borrower, directly or indirectly through a Subsidiary of the Borrower or otherwise; the return of capital by the Borrower to its shareholders as such; or any other distribution on or in respect of any shares of any class of Capital Stock of the Borrower. DOLLARS or $. Dollars in lawful currency of the United States of America. DOMESTIC LENDING OFFICE. Initially, the office of each Lender designated as such in SCHEDULE 1 attached hereto; thereafter, such other office of such Lender, if any, located within the United States that will be making or maintaining Base Rate Loans. DOMESTIC SUBSIDIARY. Any Subsidiary that is organized under the laws of the United States of America, any state or territory thereof or the District of Columbia. DRAWDOWN DATE. The date on which any Syndicated Loan is made or is to be made, and the date on which any Syndicated Loan is converted or continued in accordance with Section 2.10 hereof. ELIGIBLE ASSIGNEE. Any of (a) a commercial bank or finance company organized under the laws of the United States, or any State thereof or the District of Columbia, and having total assets in excess of $1,000,000,000; (b) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof or the District of Columbia, and having a net worth of at least $100,000,000, calculated in accordance with generally accepted accounting principles; (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having total assets in excess of $1,000,000,000, or the central bank of any country which is a member of the OECD, PROVIDED, in each case, that such bank (i) is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD and (ii) has delivered to the Agent, on the date on which the Assignment and Acceptance to which such Eligible Assignee is a party becomes effective, the forms referred to in Section 3.3.3 hereof; (d) a Lender or an Affiliate of a Lender; and (e) if, but only if, any Event of Default has occurred and is continuing, any other bank, insurance company, commercial finance company or other financial institution or other Person approved by the Agent, such approval not to be unreasonably withheld. EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of Section 3(3) of ERISA maintained or contributed to by the Borrower, other than a Guaranteed Pension Plan or a Multiemployer Plan. ENVIRONMENTAL LAWS. Any judgment, decree, order, law, license, rule or regulation pertaining to environmental matters, including without limitation, those arising under the Resource Conservation and Recovery Act ("RCRA"), CERCLA, the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state or local statute, regulation, ordinance, order or decree relating to health, safety or the environment. ENVIRONMENTAL NOTICE. Any notice to the Borrower or any of its Subsidiaries from any third party including, without limitation: any federal, state or local governmental authority, -7- (a) that it has been identified by the United States Environmental Protection Agency as a potentially responsible party under CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B; (b) that any Hazardous Substances which it has generated, transported or disposed of has been found at any site at which a federal, state or local agency or other third party has conducted or has ordered that the Borrower or any of its Subsidiaries conduct a remedial investigation, removal or other response action pursuant to any Environmental Law; or (c) that it is or shall be a named party to any claim, action, cause of action, complaint, or legal or administrative proceeding in connection with the release of Hazardous Substances. ERISA. The Employee Retirement Income Security Act of 1974. ERISA AFFILIATE. Any Person which is treated as a single employer with the Borrower under Section 414 of the Code. ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived. EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate Loan, the maximum rate (expressed as a decimal) at which any bank subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against "EUROCURRENCY LIABILITIES" (as that term is used in Regulation D), if such liabilities were outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Rate. EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London or such other interbank market as may be selected by the Agent in its sole discretion acting in good faith. EURODOLLAR LENDING OFFICE. Initially, the office of each Lender designated as such in SCHEDULE 1 attached hereto; thereafter, such other office of such Lender, if any, that shall be making or maintaining Eurodollar Rate Loans. EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar Rate Loan, the rate of interest equal to (a) the rate (rounded upwards to the nearest 1/16 of one percent) per annum at which the Reference Lender's Eurodollar Lending Office is offered Dollar deposits two (2) Eurodollar Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where the eurodollar and foreign currency and exchange operations of such Eurodollar Lending Office are customarily conducted, for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of the Eurodollar Rate Loan to which such Interest Period applies, divided by (b) a number equal to 1.00 MINUS the Eurocurrency Reserve Rate. EURODOLLAR RATE LOANS. Any Syndicated Loans bearing interest calculated by reference to the Eurodollar Rate. EVENT OF DEFAULT. See Section 11.1 hereof. -8- EXISTING CREDIT AGREEMENTS. Collectively, (a) the Revolving Credit Agreement, dated as of November 13, 1997, as amended, by and among the Borrower, the lending institutions party thereto, Fleet National Bank (f/k/a BankBoston, N.A.) as administrative and documentation agent for such lending institutions, The Chase Manhattan Bank, as syndication agent for such lending institutions, and the co-agents named therein and (b) the Revolving Credit Agreement dated as of June 25, 2001, as amended, by and among the Borrower, the lending institutions party thereto, Fleet National Bank as administrative agent for such lending institutions and Citibank, N.A. and First Union National Bank, as documentation agents for such lending institutions. FACILITY FEE. See Section 4.2.1 hereof. FEE LETTER. See Section 4.1 hereof. FINANCIAL AFFILIATE. A Subsidiary of the bank holding company controlling any Lender, which Subsidiary is engaging in any of the activities permitted by Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. Section 1843). FIXED CHARGE COVERAGE RATIO. See Section 8.1 hereof. FIXED RATE LOAN. A Swing Line Loan bearing interest at a fixed rate for a period of time agreed to by the Borrower and the Agent pursuant to Section 2.11.3. FLEET. Fleet National Bank, a national banking association, in its individual capacity. FUND. Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business. GAAP OR GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (a) When used in Sections 7 and 8 hereof and in the calculation of the Obligor Group Requirement, whether directly or indirectly through reference to a capitalized term used therein, means (i) principles that are consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent with such principles, the accounting practice of the Borrower reflected in its financial statements for the year ended on the Balance Sheet Date, and (b) when used in general, other than as provided above, means principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, as in effect from time to time, and (ii) consistently applied with past financial statements of the Borrower adopting the same principles, provided that in each case referred to in this definition of GAAP a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in GAAP) as to financial statements in which such principles have been properly applied. GUARANTEED PENSION PLAN. Any employee pension benefit plan within the meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan. -9- GUARANTIES. The Guaranty by each Guarantor in favor of the Agent for the benefit of the Lenders and the Agent, dated as of the date hereof, and each additional guaranty executed by a Subsidiary acquired or formed after the date hereof. GUARANTORS. Those Subsidiaries of the Borrower listed on SCHEDULE 2 attached hereto, as such schedule may be modified from time to time in accordance with Section 4.13 hereof. HAZARDOUS SUBSTANCES. Any hazardous waste, as defined by 42 U.S.C. Section 6903(5), any hazardous substances as defined by 42 U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic substances, oil or hazardous materials or other chemicals or substances regulated by any Environmental Laws. INDEBTEDNESS. All obligations, contingent and otherwise, that in accordance with GAAP should be classified upon the obligor's balance sheet as liabilities, or to which reference should be made by footnotes thereto, including in any event and whether or not so classified: (a) all debt and similar monetary obligations, whether direct or indirect; (b) all liabilities secured by any mortgage, pledge, security interest, lien, charge or other encumbrance existing on property owned or acquired subject thereto, whether or not the liability secured thereby shall have been assumed; (c) all obligations in respect of interest rate protection arrangements and exchange rate protection arrangements; (d) all guarantees, endorsements and other contingent obligations whether direct or indirect in respect of indebtedness of others, including any obligation to supply funds to or in any manner to invest in, directly or indirectly, the debtor, to purchase indebtedness, or to assure the owner of indebtedness against loss, through an agreement to purchase goods, supplies, or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise, and the obligations to reimburse the issuer in respect of any letters of credit; and (e) every obligation of such Person under any Synthetic Lease. INTEREST PAYMENT DATE. (a) As to any Base Rate Loan, the last day of the calendar quarter which includes the Drawdown Date thereof; (b) as to any Eurodollar Rate Loan in respect of which the Interest Period is (i) 3 months or less, the last day of such Interest Period and (ii) more than 3 months, the date that is 3 months from the first day of such Interest Period, the last day of each 3 month period thereafter, and, in addition, the last day of such Interest Period; (c) as to any Competitive Bid Loan, on the last day of the Interest Period applicable thereto; and (d) with respect to any Swing Line Loan, the day that such Swing Line Loan is required to be repaid. INTEREST PERIOD. With respect to each Loan (a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the periods set forth below, as selected by the Borrower in a Loan Request (i) for any Base Rate Loan, the last day of the calendar quarter; (ii) for any Eurodollar Rate Loan, 1, 2, 3 or 6 months; (iii) for any Competitive Bid Loan, from 7 through 120 days; and (iv) for any Fixed Rate Loan, the period requested by the Borrower and agreed to by the Agent pursuant to Section 2.11.3, and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Loan and ending on the last day of one of the periods set forth above, as selected by the Borrower in a Conversion Request; PROVIDED that all of the foregoing provisions relating to Interest Periods are subject to the following: (A) if any Interest Period with respect to a Eurodollar Rate Loan would otherwise end on a day that is not a Eurodollar Business Day, that Interest Period shall be extended to the next succeeding Eurodollar Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which -10- event such Interest Period shall end on the immediately preceding Eurodollar Business Day; (B) if any Interest Period with respect to a Base Rate Loan would end on a day that is not a Business Day, that Interest Period shall end on the next succeeding Business Day; (C) if the Borrower shall fail to give notice as provided in Section 2.10 hereof, the Borrower shall be deemed to have requested a conversion of the affected Eurodollar Rate Loan to a Base Rate Loan and the continuance of all Base Rate Loans as Base Rate Loans on the last day of the then current Interest Period with respect thereto; (D) any Interest Period relating to any Eurodollar Rate Loan that begins on the last Eurodollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Eurodollar Business Day of a calendar month; (E) any Interest Period relating to any Revolving Credit Loan that would otherwise extend beyond the Maturity Date shall end on the Maturity Date; and (F) if the Borrower shall fail to give notice to the Agent of its intention to continue a Fixed Rate Loan as provided in Section 2.11.3, the Borrower shall be deemed to have requested a conversion of the affected Fixed Rate Loan to a Swing Line Loan which is not a Fixed Rate Loan on the last day of the then current Interest Period with respect thereto. INVESTMENTS. All expenditures made and all liabilities incurred (contingently or otherwise) for the acquisition of stock or Indebtedness of, or for loans, advances, capital contributions or transfers of property to, or in respect of any guaranties (or other commitments as described under Indebtedness), or obligations of, any Person. In determining the aggregate amount of Investments outstanding at any particular time: (a) the amount of any Investment represented by a guaranty shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (d) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (b) may be deducted when paid; and (e) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof. INVITATION FOR COMPETITIVE BID QUOTES. See Section 2.3.1(c) hereof. ISSUING BANK. Fleet, HSBC Bank USA or such other lender as may be selected by the Borrower, with the consent of the Agent (such consent not to be unreasonably withheld), to issue Letters of Credit hereunder. An Issuing Bank may arrange, with the consent of the Borrower, for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing Bank" shall include any -11- such Affiliate with respect to Letters of Credit issued by such Affiliate. Nothing herein shall be deemed to restrict the right of an Issuing Bank to issue letters of credit outside of this Credit Agreement. JOINDER AGREEMENTS. Joinder agreements in substantially the form of EXHIBIT I hereto pursuant to which Subsidiaries of the Borrower become parties to and agree to be bound by the provisions of the Guaranty as a Guarantor. LENDER AFFILIATE. With respect to any Lender, (a) an Affiliate of such Lender or (b) any Approved Fund. LENDERS. As defined in the preamble hereto, which term shall include any other Person who becomes an assignee of any rights and obligations of a Lender pursuant to Section 17 hereof. Unless the context otherwise requires, the term "Lenders" includes the Issuing Bank and the Agent in its capacity as lender of the Swing Line Loans. LETTER(S) OF CREDIT. Standby and documentary letters of credit issued by the Issuing Bank from time to time for the account of the Borrower hereunder. LETTER OF CREDIT FEE. See Section 3.5 hereof. LOAN DOCUMENTS. This Credit Agreement, the Notes, the Guaranties, the Fee Letter and any other documents delivered pursuant to this Credit Agreement. LOAN REQUEST. See Section 2.2 hereof. LOANS. Revolving Credit Loans made or to be made by the Lenders to the Borrower pursuant to Section 2 hereof, whether Syndicated Loans or Competitive Bid Loans, and Swing Line Loans. MARGIN REGULATIONS. See Section 5.13 hereof. MATURITY DATE. June 21, 2005, as the same may be extended in the discretion of the Lenders pursuant to Section 2.12. MAXIMUM DRAWING AMOUNT. On the date as of which the maximum drawing amount is to be determined, the aggregate maximum amount which the beneficiaries may draw from time to time under Letters of Credit issued for the account of the Borrower pursuant to Section 3.1 hereof. MEASUREMENT PERIOD. See Section 8.1 hereof. MONEY MARKET RATE. With respect to any Swing Line Loan, the lesser of (a) the Prime Rate and (b) such other rate per annum as is quoted by the Agent from time to time for Swing Line Loans. MOODY'S. Moody's Investors Service, Inc. MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of Section 3(37) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate. -12- NOTES. The Syndicated Notes, the Competitive Bid Notes and the Swing Line Note, or, when used in the singular, any of such Notes. NOTICE OF COMPETITIVE BID BORROWING. See Section 2.3.1(f) hereof. OBLIGATIONS. All indebtedness, obligations and liabilities of any of the Borrower and its Subsidiaries to any of the Lenders and the Agent, individually or collectively, existing on the date of this Credit Agreement or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Credit Agreement or any of the other Loan Documents or in respect of any of the Loans made or Reimbursement Obligations incurred, or any of the Notes, Reimbursement Agreements, Letters of Credit or other instruments at any time evidencing any thereof. OBLIGOR GROUP. Collectively, the Borrower and the Guarantors (including any Subsidiary of the Borrower which as of any date of determination has become a Guarantor pursuant to the provisions of this Credit Agreement). OBLIGOR GROUP REQUIREMENT. The requirement that, as of any date of determination, Consolidated EBIT of the Obligor Group for the Measurement Period most recently ended shall not be less than $275,000,000. OPTION LOANS. See Section 7.3 hereof. OUTSTANDING or OUTSTANDING. With respect to the Loans, the aggregate unpaid principal thereof as of any date of determination. PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of ERISA and any successor entity or entities having similar responsibilities. PERMITTED LIENS. Liens, security interests and other encumbrances permitted under Section 7.2 hereof. PERSON. Any individual, corporation, limited liability company, partnership, limited liability partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof. PRIME RATE. The higher of (a) the annual rate of interest announced from time to time by Fleet at its office in Boston, Massachusetts, as its "prime rate" and (b) one-half of one percent (1/2%) per annum above the Federal Funds Effective Rate. For the purposes of this definition, "FEDERAL FUNDS EFFECTIVE RATE" shall mean for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three funds brokers of recognized standing selected by the Agent. Changes in the Prime Rate resulting from any changes in Fleet's "prime rate" shall take place immediately without notice or demand of any kind. -13- RATE ADJUSTMENT PERIOD. See definition of Applicable Margin. REAL ESTATE. All real property at any time owned or leased (as lessee or sublessee) by the Borrower or any of its Subsidiaries. RECORD. The grid attached to a Note, or the continuation of such grid, or any other similar record, including computer records, maintained by any Lender with respect to any Loan referred to in such Note. REFERENCE LENDER. Fleet. REIMBURSEMENT AGREEMENTS. The applications made and agreements entered into between the Issuing Bank and the Borrower relating to Letters of Credit in form and substance satisfactory to the Issuing Bank. REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the Issuing Bank on account of any drawing under any Letter of Credit. RENTAL EXPENSE. All obligations of the Borrower or any of its Subsidiaries under any rental agreements or leases of real property relating to retail stores, other than obligations in respect of Capitalized Leases and Synthetic Leases. REPLACEMENT LENDER. See Section 4.12 hereof. REQUIRED LENDERS. As of any date, the Lenders holding more than fifty percent (50%) of the outstanding principal amount of the Syndicated Notes on such date; and if no such principal is outstanding, the Lenders whose aggregate Commitment Amounts constitute more than fifty percent (50%) of the Total Commitment. REVOLVER PERIOD. The period beginning on the Closing Date to and including the day immediately preceding the Maturity Date. REVOLVING CREDIT LOANS. Collectively, the Syndicated Loans and the Competitive Bid Loans. S&P. Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc. SECURITIZATION. The securitization by the Borrower and certain of its Subsidiaries of up to $300,000,000 of third-party accounts receivable on the terms and conditions set forth in the (a) Receivables Purchase Agreement, dated as of October 27, 2000, among the Borrower, Lincolnshire Funding, LLC, Corporate Receivables Corporation, the financial institutions from time to time party thereto as Purchasers, and Citicorp North America, Inc., as Agent, and (b) Receivables Sale Agreement, dated as of October 27, 2000, among the Borrower, Quill Corporation, Staples Contract & Commercial, Inc. and Hackensack Funding, LLC, each as delivered to the Agent prior to the Closing Date and as in effect on the Closing Date, and in each case as amended with the consent of the Lenders, and any replacement or successor accounts receivable financing facility which contains terms and conditions which are substantially similar to the securitization described in clauses (a) and (b). -14- SENIOR DEBT RATING. The rating issued by S&P or Moody's with respect to unsecured Indebtedness of the Borrower not maturing within twelve months, issued without third-party credit enhancement, and not subordinated by its term in right of payment to other Indebtedness of the Borrower. In the event that no such ratings are available on such unsecured Indebtedness of the Borrower, the Senior Debt Rating shall be the rating implied, in the reasonable discretion of the Agent, to such unsecured Indebtedness by reference to such other Indebtedness of the Borrower as shall be so rated. STOCKHOLDERS' EQUITY. As at any date of determination, the sum of (a) the capital accounts including common stock and preferred stock, but excluding treasury stock of the Borrower PLUS (b) the earned surplus and capital surplus of the Borrower (excluding adjustments to translate foreign assets and liabilities for changes in foreign exchange rates made in accordance with Financial Accounting Standards Board Statement No. 52), as determined in accordance with GAAP. SUBORDINATED DEBT. Unsecured Indebtedness of the Borrower or any of its Subsidiaries that is expressly subordinated and made junior to the payment and performance of the Obligations, and evidenced as such by a written instrument containing subordination provisions in form and substance approved by the Required Lenders in writing. SUBSIDIARY. Any corporation, association, trust, or other business entity of which the designated parent shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a majority (by number of votes) of the outstanding Voting Stock and the accounts of which are consolidated with the Borrower in accordance with GAAP. SUBSTITUTED LENDER. See Section 4.12 hereof. SWING LINE LOAN MATURITY DATE. With respect to any Swing Line Loan, the date specified by the Borrower in the Swing Line Loan Request relating thereto as the maturity date of such Swing Line Loan, which in no event shall be later than the earlier to occur of (a) ten (10) days after the Drawdown Date of such Swing Line Loan and (b) the Maturity Date. SWING LINE LOAN REQUEST. See Section 2.11.1. SWING LINE LOANS. See Section 2.11.1 hereof. SWING LINE NOTE. See Section 2.11.5 hereof. SWING LINE SUBLIMIT. $60,000,000. SYNDICATED LOAN(S). One or more revolving credit loans funded by the Lenders in accordance with their respective Commitment Percentages. SYNDICATED NOTE. See Section 2.5(a) hereof. SYNTHETIC LEASE. Any lease of goods or other property, whether real or personal, which is treated as an operating lease under GAAP and as a loan or financing for U.S. income tax purposes. -15- TOTAL COMMITMENT. The sum of the Commitment Amounts of the Lenders, as in effect from time to time. The Total Commitment as of the Closing Date is $600,000,000. TYPE. As to any Syndicated Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan. UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which the Borrower has not reimbursed the Issuing Bank. UTILIZATION FEE. See Section 4.2.2 hereof. VOTING STOCK. Stock or similar interests, of any class or classes (however designated), the holders of which are at the time entitled, as such holders, to vote for the election of a majority of the directors (or persons performing similar functions) of the corporation, association, trust or other business entity involved, whether or not the right so to vote exists by reason of the happening of a contingency. SECTION 1.2. RULES OF INTERPRETATION. (a) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms and the terms of this Credit Agreement. (b) The singular includes the plural and the plural includes the singular. (c) A reference to any law includes any amendment or modification to such law. (d) A reference to any Person includes its permitted successors and permitted assigns. (e) Accounting terms not otherwise defined herein have the meanings assigned to them by generally accepted accounting principles applied on a consistent basis by the accounting entity to which they refer. (f) The words "INCLUDE", "INCLUDES" and "INCLUDING" are not limiting. (g) All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in the Commonwealth of Massachusetts, have the meanings assigned to them therein, with the term "instrument" being that defined under Article 9 of the Uniform Commercial Code. (h) Reference to a particular "Section" refers to that section of this Credit Agreement unless otherwise indicated. (i) The words "HEREIN", "HEREOF", "HEREUNDER" and words of like import shall refer to this Credit Agreement as a whole and not to any particular section or subdivision of this Credit Agreement. -16- (j) Unless otherwise expressly indicated, in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including," the words "to" and "until" each mean "to but excluding," and the word "through" means "to and including." (k) This Credit Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are, however, cumulative and are to be performed in accordance with the terms thereof. (l) This Credit Agreement and the other Loan Documents are the result of negotiation among, and have been reviewed by counsel to, among others, the Agent and the Borrower and are the product of discussions and negotiations among all parties. Accordingly, this Credit Agreement and the other Loan Documents are not intended to be construed against the Agent or any of the Lenders merely on account of the Agent's or any Lender's involvement in the preparation of such documents. SECTION 2. THE REVOLVING CREDIT FACILITY. SECTION 2.1. COMMITMENT TO LEND SYNDICATED LOANS. Subject to the terms and conditions set forth in this Credit Agreement, each of the Lenders severally agrees from time to time during the Revolver Period to make Syndicated Loans to the Borrower in such amounts as are requested by the Borrower, PROVIDED, that the sum of the aggregate principal amount of Syndicated Loans made by each Lender (after giving effect to all amounts requested) shall not at any time exceed such Lender's Commitment Amount (without regard to any Competitive Bid Loans of such Lender outstanding at such time), and PROVIDED, FURTHER, that (a) at no time shall the sum of, without duplication, (i) the outstanding Syndicated Loans, PLUS (ii) the outstanding Swing Line Loans, PLUS (iii) the Maximum Drawing Amount, PLUS (iv) all Unpaid Reimbursement Obligations, PLUS (v) the outstanding Competitive Bid Loans exceed the Total Commitment, and (b) subject to Section 2.4.1 and Section 13.5.3, at all times the outstanding aggregate principal amount of all Syndicated Loans made by each Lender shall equal such Lender's Commitment Percentage of the outstanding Syndicated Loans made by all Lenders pursuant to the terms of this Credit Agreement. Subject to the terms and conditions set forth in this Credit Agreement, the Borrower may borrow, repay and reborrow Syndicated Loans from time to time during the Revolver Period upon notice by the Borrower to the Agent given in accordance with Section 2.2 hereof. Each request for a Syndicated Loan hereunder shall constitute a representation and warranty by the Borrower that the conditions set forth in Sections 9 and 10 hereof, in the case of the initial Syndicated Loans to be made on the Closing Date, and Section 10 hereof, in the case of all other Syndicated Loans, shall have been satisfied on the date of such request. SECTION 2.2. REQUESTS FOR SYNDICATED LOANS. The Borrower shall give to the Agent written notice in the form of EXHIBIT A attached hereto (or telephonic notice confirmed in a writing in the form of EXHIBIT A attached hereto) of each Syndicated Loan requested hereunder (a "LOAN REQUEST") not later than (a) 12:00 noon (Boston time) on the proposed Drawdown Date of any Base Rate Loan and (b) 12:00 noon (Boston time) three (3) Eurodollar Business Days prior to the proposed Drawdown Date of any Eurodollar Rate Loan. Each such notice shall specify (i) the principal amount of the Syndicated Loan requested, (ii) the proposed Drawdown Date of such Syndicated Loan, (iii) the Interest Period for such Syndicated Loan and (iv) the Type of such -17- Syndicated Loan. Promptly upon receipt of any such notice, the Agent shall notify each of the Lenders thereof. Each Loan Request shall be irrevocable and binding on the Borrower and shall obligate the Borrower to accept the Syndicated Loan requested from the Lenders on the proposed Drawdown Date. Each Loan Request shall be (A) in a minimum aggregate amount of $1,000,000 or an integral multiple thereof with respect to Base Rate Loans and (B) in a minimum aggregate amount of $2,000,000 or an integral multiple of $l,000,000 with respect to Eurodollar Rate Loans. SECTION 2.3. COMPETITIVE BID LOANS. SECTION 2.3.1. COMPETITIVE BID BORROWINGS. (a) THE COMPETITIVE BID OPTION. In addition to the Syndicated Loans permitted to be made hereunder pursuant to Section 2.1 hereof, the Borrower may, from time to time during the Revolver Period pursuant to the terms of this Section 2.3, cause the Agent to request the Lenders to make offers to fund Competitive Bid Loans to the Borrower from time to time prior to the Maturity Date. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept such offers in the manner set forth in this Section 2.3. Each Lender may make Competitive Bid Loans in an aggregate amount (after giving effect to all amounts requested) not to exceed the lesser of (i) the Total Commitment and (ii) the Competitive Bid Sublimit, PROVIDED that at no time shall the sum of (A) the aggregate amount of all outstanding Syndicated Loans, PLUS (B) the aggregate amount of all outstanding Swing Line Loans, PLUS (C) the Maximum Drawing Amount, PLUS (D) all Unpaid Reimbursement Obligations, PLUS (E) the aggregate outstanding amount of Competitive Bid Loans exceed the Total Commitment. (b) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to request offers to make Competitive Bid Loans under this Section 2.3, it shall transmit to the Agent by telex or facsimile a Competitive Bid Quote Request substantially in the form of EXHIBIT B attached hereto (a "COMPETITIVE BID QUOTE REQUEST") so as to be received no later than 1:00 p.m. (Boston time) on the second Business Day prior to the requested Drawdown Date, specifying (i) the requested Drawdown Date (which must be a Business Day), (ii) the principal amount of such Competitive Bid Loan (which must be a minimum of $2,000,000 or any greater integral multiple of $1,000,000 and may not exceed the lesser of (A) the Total Commitment and (B) the Competitive Bid Sublimit), and (iii) the Interest Period of such Competitive Bid Loan, subject to the provisions of the definition of Interest Period. A Competitive Bid fee of $750 shall be payable by the Borrower to the Agent with respect to each Competitive Bid Quote Request on the last day of the calendar quarter in which such Competitive Bid Quote Request was made. The Borrower may request offers to make Competitive Bid Loans for one amount and three Interest Periods in a single Competitive Bid Quote Request. No new Competitive Bid Quote Request shall be given until the Borrower has notified the Agent of its acceptance or non-acceptance of the Competitive Bid Quotes relating to any outstanding Competitive Bid Quote Request. (c) INVITATION FOR COMPETITIVE BID QUOTES; ALTERNATIVE MANNER OF AUCTION. Subsequent to timely receipt of a Competitive Bid Quote Request, the Agent shall send to the Lenders by telex or facsimile an Invitation for Competitive Bid Quotes substantially in the form of EXHIBIT C attached hereto (an "INVITATION FOR COMPETITIVE BID QUOTES"), as promptly as possible but not later than 3:00 p.m. (Boston time) on the second Business Day prior to the requested Drawdown Date which shall constitute an invitation by the Borrower to each Lender to submit Competitive Bid Quotes offering to make Competitive Bid Loans to which such -18- Competitive Bid Quote Request relates in accordance with this Section 2.3. If, after receipt by the Agent of a Competitive Bid Quote Request from the Borrower in accordance with subsection (b) of this Section 2.3.1, the Agent or any Lender shall be unable to complete any procedure of the auction process described in subsections (c) through (f) (inclusive) of this Section 2.3.1 due to the inability of such Person to transmit or receive communications through the means specified therein, such Person may rely on telephonic notice for the transmission or receipt of such communications. In any case where such Person shall rely on telephone transmission or receipt, any communication made by telephone shall, as soon as possible thereafter, be followed by written confirmation thereof. (d) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES. (i) Each Lender may, but shall be under no obligation to, submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the requirements of this subsection (d) and must be submitted to the Agent by telex or facsimile not later than 10:00 a.m. (Boston time) on the requested Drawdown Date, PROVIDED, that Competitive Bid Quotes may be made by the Agent in its capacity as a Lender only if it notifies the Borrower of the terms of its Competitive Bid Quote no later than 9:30 a.m. (Boston time) on the requested Drawdown Date. Subject to the provisions of Sections 9 and 10 hereof, any Competitive Bid Quote so made shall be irrevocable except with the written consent of the Agent given on the instructions of the Borrower. (ii) Each Competitive Bid Quote shall be in substantially the form of EXHIBIT D-1 attached hereto and shall in any case specify: (A) the requested Drawdown Date and Interest Periods; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount (X) may be greater than the Commitment Amount of the quoting Lender but may not exceed the lesser of (I) the Total Commitment and (II) the Competitive Bid Sublimit, (Y) must be $2,000,000 or a larger multiple of $1,000,000 and (Z) may not exceed the aggregate principal amount of Competitive Bid Loans for which offers were requested, (C) the rate of interest per annum (rounded to the nearest 1/1000th of 1%) (the "COMPETITIVE BID RATE") offered for each such Competitive Bid Loan; and (D) the identity of the quoting Lender. (iii) Any Competitive Bid Quote shall be disregarded if it: (A) is not substantially in the form of EXHIBIT D-1 attached hereto or does not specify all of the information required by subsection (d)(ii) of this Section 2.3.1; (B) contains qualifying, conditional or similar language (except that it may, in the case of a quote relating to more than one Interest Period, contain the condition that the Lender will fund any one, but not more, of the Competitive Bid Loans offered in such Competitive Bid Quote); -19- (C) proposes terms other than or in addition to those set forth in the applicable Invitation for Competitive Bid Quotes; or (D) arrives after the time set forth in subsection (d)(i) of this Section 2.3.1. (e) NOTICE TO BORROWER. Not later than 10:30 a.m. (Boston time) on the requested Drawdown Date, the Agent shall notify the Borrower of the terms of all Competitive Bid Quotes submitted by the Lenders in accordance with subsection (d) of this Section 2.3.1. The Agent's notice to the Borrower shall specify (i) the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request, and (ii) the respective principal amounts and Competitive Bid Rates so offered. (f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 11:00 a.m. (Boston time) on the requested Drawdown Date, the Borrower shall notify the Agent, and the Agent shall promptly notify each Lender with respect to its offer, of the Borrower's acceptance or non-acceptance of the offers of which it was notified pursuant to subsection (e) of this Section 2.3.1. In the case of an acceptance, such notice shall (i) be substantially in the form of EXHIBIT D-2 attached hereto (a "NOTICE OF COMPETITIVE BID BORROWING"), (ii) be irrevocable by the Borrower, and (iii) specify the aggregate principal amount of offers for each Interest Period that are accepted. Each acceptance by the Borrower of Competitive Bid Loans hereunder shall constitute a representation and warranty by the Borrower that the conditions set forth in Sections 9 and 10 hereof have been satisfied on the date of such acceptance. The Borrower may accept any Competitive Bid Quote in whole or in part; PROVIDED that: (A) the aggregate principal amount of each Competitive Bid Loan may not exceed the applicable amount set forth in the related Competitive Bid Quote Request, (B) the aggregate principal amount of each Competitive Bid Loan must be $2,000,000 or a larger multiple of $1,000,000, and (C) acceptance of offers may only be made on the basis of ascending Competitive Bid Rates. (g) ALLOCATION BY AGENT; USAGE OF COMMITMENTS. If offers are made by two or more Lenders with the same Competitive Bid Rates, for a greater aggregate principal amount than the amount in respect of which offers are accepted for the related Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted shall be allocated by the Agent among such Lenders as nearly as possible (in such multiples, not less than $100,000 as the Agent may deem appropriate) in proportion to the aggregate principal amounts of such offers. If any such Lender has indicated a minimum principal amount of Competitive Bid Loans in its Competitive Bid Request, and under the procedures of this subsection (g), the Agent would have allocated to it an amount less than such minimum, such Competitive Bid Quote will instead be deemed to have been withdrawn. Determination by the Agent of the amounts of Competitive Bid Loans and the allocation thereof shall be conclusive in the absence of manifest error. The Agent shall, promptly after the funding of any Competitive Bid Loan, notify the Lenders thereof pursuant to a notice substantially in the form of EXHIBIT D-3 attached hereto. (h) FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the Drawdown Date of any Competitive Bid Loan, the Total Commitment has not terminated in full and if, on such -20- Drawdown Date, the applicable conditions of Sections 9 and 10 hereof are satisfied, the Lender or Lenders whose offers the Borrower has accepted will fund each Competitive Bid Loan so accepted as provided in Section 2.4.1 hereof. SECTION 2.3.2. MAXIMUM COMPETITIVE BID LOANS; FUNDING LOSSES. (a) Notwithstanding any other provision herein to the contrary, at no time shall the aggregate principal amount of Competitive Bid Loans outstanding at any time exceed the lesser of (i) the Total Commitment MINUS the sum of (A) the aggregate principal amount of Syndicated Loans outstanding at such time PLUS (B) the aggregate principal amount of Swing Line Loans outstanding at such time PLUS (C) the Maximum Drawing Amount PLUS (D) all Unpaid Reimbursement Obligations and (ii) the Competitive Bid Sublimit. (b) If after acceptance of any Competitive Bid Quote pursuant to Section 2.3.1(f) hereof, the Borrower fails to borrow any Competitive Bid Loan so accepted on the date specified therefor, the Borrower shall indemnify the Lender funding such Competitive Bid Loan against any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such unborrowed Competitive Bid Loans, including, without limitation, compensation as provided in Section 4.10 hereof. SECTION 2.3.3. REPAYMENT OF COMPETITIVE BID LOANS. The principal of each Competitive Bid Loan shall become absolutely due and payable by the Borrower on the last day of the Interest Period relating thereto, and the Borrower hereby absolutely and unconditionally promises to pay to the Agent, for the accounts of the relevant Lenders, on the last day of the Interest Period relating thereto the principal amount of all such Competitive Bid Loans PLUS interest thereon at the applicable Competitive Bid Rate. Subject to the terms of this Credit Agreement, the Borrower may reborrow any amounts so repaid from time to time prior to the Maturity Date. SECTION 2.4. FUNDS FOR REVOLVING CREDIT LOANS. SECTION 2.4.1. FUNDING PROCEDURES. Not later than 1:30 p.m. (Boston time) on the proposed Drawdown Date of any Syndicated Loans or Competitive Bid Loans, as applicable, each of the relevant Lenders will make available to the Agent, at the Agent's Head Office, in immediately available funds, the amount of such Lender's Commitment Percentage of the amount of the requested Syndicated Loans or the amount of such Lender's Competitive Bid Loan, as applicable. Upon receipt from each Lender of such amount, and upon receipt of the documents required by Sections 9 and 10 hereof and the satisfaction of the other conditions set forth therein, to the extent applicable, the Agent will make available to the Borrower the aggregate amount of such Revolving Credit Loans made available to the Agent by the relevant Lenders. The failure or refusal of any Lender to make available to the Agent its Commitment Percentage of the requested Syndicated Loans on any Drawdown Date shall not excuse any other Lender from making available to the Agent the amount of such other Lender's Commitment Percentage of any requested Syndicated Loans. SECTION 2.4.2. ADVANCES BY AGENT. The Agent may, unless notified to the contrary by any Lender prior to a Drawdown Date, assume that such Lender has made available to the Agent on such Drawdown Date the amount of such Lender's Commitment Percentage of the Syndicated Loans (or, in the case of Competitive Bid Loans, the amount of such Lender's accepted offers of Competitive Bid Loans, if any) to be made on such Drawdown Date, and the Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrower a -21- corresponding amount. If any Lender makes available to the Agent such amount on a date after such Drawdown Date, such Lender shall pay to the Agent on demand an amount equal to the product of (a) the average computed for the period referred to in clause (c) below, of the weighted average interest rate paid by the Agent for federal funds acquired by the Agent during each day included in such period, TIMES (b) the amount of such Lender 's Commitment Percentage of such Syndicated Loans (or accepted offers of Competitive Bid Loans, as applicable), TIMES (c) a fraction, the numerator of which is the number of days that elapse from and including such Drawdown Date to the date on which the amount of such Lender's Syndicated Loans or Competitive Bid Loans, as applicable, shall become immediately available to the Agent, and the denominator of which is 365. A statement of the Agent submitted to such Lender with respect to any amounts owing under this Section 2.4.2 shall be PRIMA FACIE evidence of the amount due and owing to the Agent by such Lender. If the amount of such Lender's Syndicated Loans or Competitive Bid Loans, as applicable, is not made available to the Agent by such Lender within three (3) Business Days following such Drawdown Date, the Agent shall be entitled to recover such amount from the Borrower on demand, with interest thereon at the rate per annum applicable to the Syndicated Loans or Competitive Bid Loans, as applicable, made on such Drawdown Date and the Borrower may take the actions permitted under Section 4.12 hereof to replace such Lender. Any payment by the Borrower to the Agent of any Syndicated Loans or Competitive Bid Loans pursuant to this Section 2.4.2 shall be deemed to be a payment of the Revolving Credit Loans that were to be made by the Lender that failed to make such Syndicated Loans or Competitive Bid Loans, as applicable. SECTION 2.5. THE NOTES. (a) The Syndicated Loans shall be evidenced by separate promissory notes of the Borrower in substantially the form of EXHIBIT E-1 attached hereto (each a "SYNDICATED NOTE"), dated as of the Closing Date (or such other date on which a Lender may become a party hereto in accordance with Section 17) and completed with appropriate insertions. A Syndicated Note shall be payable to the order of each Lender in a principal amount equal to such Lender's Commitment Amount or, if less, the outstanding amount of all Syndicated Loans made by such Lender, PLUS interest accrued thereon, as set forth below. The Borrower irrevocably authorizes each Lender to make, at or about the time of the Drawdown Date of any Syndicated Loan or at the time of receipt of any payment of principal on such Lender's Syndicated Note, an appropriate notation on the Record attached to such Lender's Syndicated Note reflecting the making of such Syndicated Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Syndicated Loans set forth on such Lender's Record shall be PRIMA FACIE evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such Lender's Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Syndicated Note to make payments of principal of or interest on any Syndicated Note when due. (b) The Competitive Bid Loans shall be evidenced by separate promissory notes of the Borrower in substantially the form of EXHIBIT E-2 attached hereto (each a "COMPETITIVE BID NOTE"), dated as of the Closing Date (or such other date on which a Lender may become a party hereto in accordance with Section 17) and completed with appropriate insertions. A Competitive Bid Note shall be payable to the order of each Lender in a principal amount equal to the Competitive Bid Sublimit or, if less, the outstanding amount of all Competitive Bid Loans made by such Lender to the Borrower hereunder, as set forth in Section 2.3 hereof, PLUS interest accrued thereon, as set forth below. The Borrower irrevocably authorizes each Lender to make, at or about the time of the Drawdown Date of any Competitive Bid Loan made by such Lender or at the time of receipt of the payment of principal of such Competitive Bid Loan, an appropriate notation on the Record attached to such Lender's Competitive Bid Note reflecting the making of -22- such Competitive Bid Loan and repayments thereof. All such notations shall constitute PRIMA FACIE evidence of the amount of such Competitive Bid Loans and the repayments thereof, but the failure to record, or any error in so recording such amount on such Lender's Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Competitive Bid Note to make payments of principal or interest on any Competitive Bid Note when due. SECTION 2.6. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the right at any time and from time to time prior to the Maturity Date upon three (3) Business Days' prior written notice to the Agent to reduce by $5,000,000 or an integral multiple thereof or terminate entirely the Total Commitment, whereupon the Commitment Amount of each Lender shall be reduced PRO RATA in accordance with its Commitment Percentage by the amount specified in such notice or, as the case may be, terminated. Promptly after receiving any notice of the Borrower delivered pursuant to this Section 2.6, the Agent will notify the Lenders of the substance thereof. Upon the effective date of any such reduction or termination, the Borrower shall pay to the Agent for the respective accounts of the Lenders the full amount of the Facility Fee then accrued on the amount of the reduction. No reduction or termination of the Total Commitment may be reinstated. SECTION 2.7. MATURITY AND OTHER MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower promises to pay on the Maturity Date, and there shall become absolutely due and payable on the Maturity Date, all of the Revolving Credit Loans outstanding to the Borrower on such date, together with any and all accrued and unpaid interest thereon. If at any time the sum, without duplication, of (a) the outstanding aggregate principal amount of the Revolving Credit Loans PLUS (b) the outstanding aggregate principal amount of Swing Line Loans PLUS (c) the Maximum Drawing Amount PLUS (d) all Unpaid Reimbursement Obligations exceeds the Total Commitment, then the Borrower shall immediately pay the amount of such excess to the Agent for application to the Revolving Credit Loans or Unpaid Reimbursement Obligations for the respective accounts of the Lenders or to be held as cash collateral for the Reimbursement Obligations. Each prepayment of Revolving Credit Loans shall be allocated among the Lenders, in proportion, as nearly as practicable to the respective unpaid principal amount of each Lender's Syndicated Note, with adjustments to the extent practicable to equalize any prior payments or repayments not exactly in proportion, and if no Syndicated Loans are outstanding, to the Competitive Bid Loans, in proportion, as nearly as practicable, to the unpaid principal amount of each Lender's Competitive Bid Note. SECTION 2.8. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower shall have the right, at its election, to repay the outstanding amount of the Revolving Credit Loans, as a whole or in part, at any time without penalty or premium, PROVIDED that any full or partial repayment of the outstanding amount of any Eurodollar Rate Loans or Competitive Bid Loan pursuant to this Section 2.8 may be made only on the last day of the Interest Period relating thereto unless the Borrower pays each Lender, or, in the case of a Competitive Bid Loan, the applicable Lender, in accordance with Section 4.10, the costs and expenses incurred by such Lender as a result of the repayment of such Eurodollar Rate Loan or, as the case may be, Competitive Bid Loan on a day other than the last day of the Interest Period relating thereto. The Borrower shall give the Agent, prior written notice no later than 1:00 p.m., Boston time, on the date of any proposed repayment pursuant to this Section 2.8 of Base Rate Loans, and no later than 1:00 p.m., Boston time, three (3) Business Days' prior to any proposed repayment pursuant to this Section 2.8 of Eurodollar Rate Loans and Competitive Bid Loans, in each case specifying the proposed date of repayment of such Revolving Credit Loans and, the principal amount to be repaid. Each such partial repayment of the Revolving Credit Loans shall be in an integral multiple of $5,000,000, shall be accompanied by the payment of accrued interest on the principal repaid to the date of repayment and shall be applied, in the -23- case of Syndicated Loans, in the absence of instruction by the Borrower, first to the principal of Base Rate Loans and then to the principal of Eurodollar Rate Loans and, in the case of a Competitive Bid Loan, to such Competitive Bid Loan. Each partial repayment of Syndicated Loans shall be allocated among the Lenders, in proportion, as nearly as practicable, to the respective unpaid principal amount of each Lender's applicable Syndicated Note being repaid, with adjustments to the extent practicable to equalize any prior repayments not exactly in proportion. SECTION 2.9. INTEREST ON REVOLVING CREDIT LOANS. (a) During the Revolver Period, except as otherwise provided in Section 4.11 hereof, (i) each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at the rate per annum equal to the Base Rate; (ii) each Eurodollar Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at the rate per annum equal to the Eurodollar Rate determined for such Interest Period PLUS the Applicable Margin; and (iii) each Competitive Bid Loan shall bear interest at the rate per annum specified in the applicable Competitive Bid Quote with respect to such Competitive Bid Loan. (b) The Borrower promises to pay interest on each Revolving Credit Loan in arrears on each Interest Payment Date applicable with respect thereto. SECTION 2.10. CONVERSION OPTIONS. SECTION 2.10.1. CONVERSION TO DIFFERENT TYPE OF SYNDICATED LOAN. The Borrower may elect from time to time to convert any outstanding Syndicated Loan to a Syndicated Loan of another Type, PROVIDED that (a) with respect to any such conversion of a Eurodollar Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least one (1) Business Day's prior written notice of such election; (b) with respect to any such conversion of a Base Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the Agent at least three (3) Eurodollar Business Days' prior written notice of such election; (c) with respect to any such conversion of a Eurodollar Rate Loan into a Base Rate Loan, such conversion shall only be made on the last day of the Interest Period with respect thereto; and (d) no Base Rate Loan may be converted into a Eurodollar Rate Loan when any Default or Event of Default has occurred and is continuing. On the date on which such conversion is being made each Lender shall take such action as is necessary to transfer its Commitment Percentage of such Syndicated Loans to its Domestic Lending Office or its Eurodollar Lending Office, as the case may be. All or any part of outstanding Syndicated Loans of any Type may be converted into a Syndicated Loan of another Type as provided herein, PROVIDED that any partial conversion shall be in an aggregate principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Conversion Request relating to the conversion of a Syndicated Loan to a Eurodollar Rate Loan shall be irrevocable by the Borrower. SECTION 2.10.2. CONTINUATION OF TYPE OF SYNDICATED LOAN. Any Syndicated Loan of any Type may be continued as a Syndicated Loan of the same Type upon the expiration of an Interest Period with respect thereto by compliance by the Borrower with the notice provisions -24- contained in Section 2.10.1 hereof; PROVIDED that no Eurodollar Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing, but shall be automatically converted to a Base Rate Loan on the last day of the first Interest Period relating thereto ending during the continuance of any Default or Event of Default of which officers of the Agent active upon the Borrower's account have actual knowledge. In the event that the Borrower fails to provide any such notice with respect to continuation of a Eurodollar Rate Loan as such, than such Eurodollar Rate shall be automatically converted to a Base Rate Loan on the last day of the Interest Period relating thereto. The Agent shall notify the Lenders and the Borrower promptly when any such automatic conversion contemplated by this Section 2.10.2 is scheduled to occur. SECTION 2.10.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar Rate Loans shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all Eurodollar Rate Loans having the same Interest Period shall not be less than $2,000,000 or a whole multiple of $1,000,000 in excess thereof. No more than six (6) Eurodollar Rate Loans having different Interest Periods may be outstanding at any time. SECTION 2.11. THE SWING LINE. SECTION 2.11.1. THE SWING LINE LOANS. Subject to the terms and conditions hereinafter set forth, upon notice by the Borrower to the Agent in accordance with this Section 2.11, the Agent agrees to make loans to the Borrower (the "SWING LINE LOANS") on any Business Day prior to the Maturity Date in an aggregate principal amount not to exceed the Swing Line Sublimit at any one time outstanding. Each Swing Line Loan shall be in a minimum amount equal to $500,000 or an integral multiple thereof. Notwithstanding any other provisions of this Credit Agreement and in addition to the limit set forth above, at no time shall the aggregate principal amount of all outstanding Swing Line Loans exceed the remainder of (a) the Total Commitment then in effect MINUS (b) the sum of, without duplication, (i) the aggregate principal amount of all Syndicated Loans outstanding, PLUS (ii) the aggregate amount of Competitive Bid Loans outstanding at such time, PLUS (iii) the Maximum Drawing Amount, PLUS (iv) all Unpaid Reimbursement Obligations. SECTION 2.11.2. NOTICE OF BORROWING. When the Borrower desires the Agent to make a Swing Line Loan, it shall send to the Agent written notice in the form of EXHIBIT I hereto (or telephonic notice confirmed in a writing in the form of EXHIBIT I hereto) of each Swing Line Loan requested hereunder (a " SWING LINE LOAN Request") not later than 2:00 p.m. (Boston time) on the proposed Drawdown Date of any Swing Line Loan. Each such Swing Line Loan Request shall set forth the principal amount of the proposed Swing Line Loan and the Swing Line Loan Maturity Date relating to such Swing Line Loan, which shall in no event be later than Maturity Date. Each Swing Line Loan Request shall be irrevocable and binding on the Borrower and shall obligate the Borrower to borrow the Swing Line Loan from the Agent on the proposed Drawdown Date thereof. Upon satisfaction of the applicable conditions set forth in this Credit Agreement, on the proposed Drawdown Date the Agent shall make the Swing Line Loan available to the Borrower no later than 3:00 p.m. (Boston time) on the proposed Drawdown Date by crediting the amount of the Swing Line Loan to the account specified by the Borrower; PROVIDED that the Agent shall not advance any Swing Line Loans after it has received notice from any Lender that a Default or Event of Default has occurred and stating that no new Swing Line Loans are to be made until such Default or Event of Default has been cured or waived in accordance with the provisions of this Credit Agreement. -25- SECTION 2.11.3. INTEREST ON SWING LINE LOANS. Each Swing Line Loan shall, except as otherwise provided in Section 4.11 hereof, bear interest from the Drawdown Date thereof until repaid in full at the rate per annum equal to the Money Market Rate, which shall be paid on each Interest Payment Date for Base Rate Loans. The Borrower may elect from time to time that a Swing Line Loan bear interest at a fixed rate for a period of one week or such other period of time as may be agreed to by the Agent, in which case, the interest rate on such Swing Line Loan shall be the fixed rate of interest quoted by the Agent for such Swing Line Loan for such Interest Period. The Borrower shall give the Agent notice no later than 12:00 noon on the last day of the Interest Period relating to a Swing Line Loan that is a Fixed Rate Loan of its intention to continue such Swing Line Loan as a Fixed Rate Loan. In the event that the Borrower fails to give such notice, such Swing Line Loan shall, on the last day of such Interest Period, cease to be a Fixed Rate Loan. SECTION 2.11.4. REPAYMENT OF SWING LINE LOANS. The Borrower absolutely and unconditionally promises to pay each outstanding Swing Line Loan on or prior to the Swing Line Loan Maturity Date relating thereto. Upon notice by the Agent on any Business Day following the Swing Line Loan Maturity Date relating to each Swing Line Loan, in the event that the Borrower has not repaid such Swing Line Loan, each of the Lenders hereby agrees to make Syndicated Loans to the Borrower constituting Base Rate Loans, on the next succeeding Business Day following such notice, in an amount equal to such Lender's Commitment Percentage of the aggregate amount of all Swing Line Loans outstanding and overdue. The proceeds thereof shall be applied directly by the Agent to repay outstanding Swing Line Loans. Each Lender hereby absolutely, unconditionally and irrevocably agrees to make such Syndicated Loans upon one Business Day's notice as set forth above, notwithstanding (a) that the amount of such Syndicated Loan may not comply with the applicable minimums set forth herein, (b) the failure of the Borrower to meet the applicable conditions set forth herein, (c) the occurrence or continuance of a Default or an Event of Default hereunder, and (d) the Total Commitment in effect at such time. In the event that it is impracticable for such Syndicated Loan to be made for any reason on the date otherwise required above, then each Lender hereby agrees that it shall forthwith purchase (as of the date such Syndicated Loan would have been made, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Agent, and the Agent shall sell to each Lender, such participations in the Swing Line Loans (including all accrued and unpaid interest thereon) outstanding as shall be necessary to cause the Lender's to share in such Swing Line Loans PRO RATA based on their respective Commitment Percentages (without regard to any termination of the Total Commitment hereunder) by making available to the Agent an amount equal to such Lender's participation in the Swing Line Loans; PROVIDED that (i) all interest payable on the Swing Line Loans (other than interest received by the Agent pursuant to clause (ii)) shall be for the account of the Agent as a funding and administrative fee until the date as of which the respective participation is purchased, and (ii) at the time any purchase of such participation is actually made, the purchasing Lender shall be required to pay the Agent interest on the principal amount of the participation so purchased for each day from and including the date such Loan would otherwise have been made until the date of payment for such participation at the rate of interest then applicable to such Swing Line Loans during such period. The Borrower shall have the right, at its election, to repay the outstanding amount of a Swing Line Loan, as a whole or in part, at any time without penalty or premium, PROVIDED that any full or partial repayment of the outstanding amount of any Swing Line that is a Fixed Rate Loan may be made only on the last day of the Interest Period relating thereto unless the Borrower pays, in accordance with Section 4.10, to the Agent the costs and expenses incurred by the Agent as a result of the repayment of such Swing Line Loan on a day other than the last day of such Interest Period relating thereto. -26- SECTION 2.11.5. THE SWING LINE NOTE. The obligation of the Borrower to repay the Swing Line Loans made pursuant to this Credit Agreement and to pay interest thereon as set forth in this Agreement shall be evidenced by a promissory note of the Borrower substantially in the form of EXHIBIT E-3 attached hereto (the "SWING LINE NOTE"), dated the Closing Date and payable to the order of the Agent in a principal amount stated to be the lesser of (a) the Swing Line Sublimit and (b) the aggregate principal amount of Swing Line Loans at any time advanced by the Agent and outstanding hereunder. The Borrower irrevocably authorizes the Agent to make or cause to be made, at or about the time of the Drawdown Date of any Swing Line Loan or at the time of receipt of any payment of principal on the Swing Line Note, an appropriate notation on the grid attached to such Note or the Agent's records reflecting the making of such Swing Line Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Line Loans set forth on such grid or such records shall be PRIMA FACIE evidence of the principal amount thereof owing and unpaid to the Agent, but the failure to record, or any error in so recording, any such amount on such Note or such records shall not limit or otherwise affect the actual amount of the obligations of the Borrower hereunder or under the Swing Line Note to make payments of principal of or interest on the Swing Line Note when due. SECTION 2.12. REQUEST FOR EXTENSION OF MATURITY DATE. The Borrower may, on one occasion, provided that no Default or Event of Default has occurred and is continuing, by written notice to the Agent given not less than sixty (60) days prior to the first anniversary of the Closing Date request that the initial Maturity Date be extended to the date which is one year after the initial Maturity Date. The Agent shall notify the Lenders of such request promptly after receipt, and request each Lender to notify the Agent of its determination to consent or not to consent to such extension. Each Lender which makes a determination not to consent to the extension of the initial Maturity Date on or before the thirtieth day prior to the first anniversary of the Closing Date shall notify the Agent of such determination by the thirtieth day prior to the first anniversary of the Closing Date. A Lender's failure to respond within the foregoing time period shall not be deemed to be a consent by such Lender to the extension of the Maturity Date. The Borrower may take the actions permitted by Section 4.12 to replace any Lender that fails to agree to such extension. If all of the Lenders (including the Replacement Lender, if applicable) consent to the extension by so notifying the Agent in writing on or before the first anniversary of the Closing Date, the Maturity Date shall be extended for one year, and the definition of Maturity Date shall be deemed to reflect such extension for all purposes hereof. SECTION 3. LETTERS OF CREDIT. SECTION 3.1. LETTERS OF CREDIT. Subject to the terms and conditions set forth in this Credit Agreement, upon written request of the Borrower delivered to the Issuing Bank and upon the execution and delivery by the Borrower of Reimbursement Agreements with the Issuing Bank (with a copy to the Agent), the Issuing Bank shall issue, extend and renew at any time from the Closing Date until the Maturity Date, and subject to the satisfaction of the conditions precedent set forth in Sections 9 and 10 hereof, Letters of Credit in such form as the Borrower and the Issuing Bank may agree for the account of the Borrower or any of its Subsidiaries, PROVIDED that at no time shall the Maximum Drawing Amount of all Letters of Credit outstanding exceed $300,000,000 or, if less, the Total Commitment, and PROVIDED FURTHER that at no time shall the sum of (a) the aggregate principal amount of all Syndicated Loans outstanding, PLUS (b) the aggregate principal amount of all Swing Line Loans outstanding, PLUS (c) the aggregate principal amount of all Competitive Bid Loans outstanding, PLUS (d) the aggregate Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceed the Total Commitment then in effect. Each written request for the issuance of a Letter of Credit hereunder shall be received by the -27- Issuing Bank at least ten (10) Business Days prior to the proposed date of issuance, PROVIDED that the Issuing Bank shall use its best efforts to issue such Letter of Credit within five (5) Business Days following its receipt of any written request therefor. The expiry dates, amounts and beneficiaries of the Letters of Credit will be as agreed by the Borrower and the Issuing Bank in the applicable Reimbursement Agreement. In the event of any conflict between the terms of this Credit Agreement and such Reimbursement Agreement, the terms of this Credit Agreement shall control. The Borrower may request, and the Issuing Bank upon terms and conditions approved by the Borrower shall issue, substitute Letters of Credit for the Letters of Credit to reflect reductions in the amount of the Borrower's obligations supported by such Letters of Credit. Each Letter of Credit issued by the Issuing Bank hereunder shall identify: (i) the dates of issuance and expiry of such Letter of Credit, (ii) the amount of such Letter of Credit (which shall be a sum certain), (iii) the beneficiary and account party of such Letter of Credit, and (iv) the drafts and other documents necessary to be presented to the Issuing Bank upon drawing thereunder. Each Letter of Credit issued hereunder shall expire no later than one year after its date of issuance unless renewed by the Issuing Bank in accordance with the terms of such Letter of Credit. In no event shall any Letter of Credit issued hereunder expire after the date that is ten (10) days prior to the Maturity Date. The Issuing Bank shall notify the Agent on the date of each issuance, amendment, extension, renewal or drawing of a Letter of Credit, such notice to include details as to the expiration date, the face amount of such Letter of Credit, the amount drawn under such Letter of Credit and such other information as the Agent may reasonably request. SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. If any draft shall be presented or other demand for payment shall be made under any Letter of Credit, the Issuing Bank shall notify the Borrower of the date and amount of the draft presented or demand for payment and of the date and time when it expects to pay such draft or honor such demand for payment. Upon the payment by the Issuing Bank in respect of each drawing under a Letter of Credit, the Borrower shall immediately pay the Issuing Bank the amount of such drawing (it being understood that the Borrower may, subject to the conditions set forth herein, make such payment with the proceeds of a Syndicated Loan requested pursuant to Section 2.2). SECTION 3.3. LETTER OF CREDIT LOAN OBLIGATIONS ABSOLUTE. (a) The obligations of the Borrower to repay the Issuing Bank and the Banks as provided hereunder in respect of drawings under Letters of Credit shall rank PARI PASSU with the obligations of the Borrower to repay the Loans hereunder, and shall be absolute and unconditional under any and all circumstances and irrespective of the occurrence of any Default or Event of Default. Without limiting the generality of the foregoing, the Borrower's obligation to repay the Borrower's obligations in respect of drawings under Letters of Credit, or any renewals or extensions thereof, shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such payment or the legality, validity, regularity or enforceability of the Letter of Credit, or any renewal or extension thereof, or any other document whatsoever. Subject to the limitations of the following sentence and of clause (b) below, the Issuing Bank may accept or pay any draft presented to it under any Letter of Credit, or any renewal or extension thereof, regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented on or before the expiry date of the Letter of Credit, or the renewal or extension thereof then in effect. The responsibility of the Issuing Bank and its correspondents to the Borrower and the Lenders shall be only to determine that the documents (including each draft) delivered under each Letter of Credit in connection with such presentment shall be in conformity in all material respects with such Letter of Credit. -28- (b) The Issuing Bank, upon receipt of any draft drawn under a Letter of Credit, shall promptly examine such draft and any accompanying certificate or other document in accordance with this Section 3 and with its customary procedures for conformity to the requirements of such Letter of Credit. Any action, inaction or omission on the part of the Issuing Bank or any of its correspondents under or in connection with any Letter of Credit, or any renewal or extension thereof, or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable and the terms of this Section 3.3, shall be binding upon the Borrower and shall not place the Issuing Bank or any of its correspondents under any liability to the Borrower, in the absence of gross negligence or willful misconduct by the Issuing Bank or its correspondents. The Issuing Bank's rights, powers, privileges and immunities specified in or arising under this Credit Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce, Publication No. 500, and any subsequent revisions thereof (the "UNIFORM CUSTOMS") or, in the case of a standby letter of credit, either Uniform Customs or the International Standby Practices (ISP98), International Chamber of Commerce Publication No. 590 or any successor code of standby Letter of Credit practices among banks adopted by the Issuing Bank in the ordinary course of business as a standby letter of credit issuer and in effect at the time of issuance of such Letter of Credit. SECTION 3.4. OBLIGATIONS OF THE LENDERS. (a) Each Lender and the Borrower hereby acknowledge that each Letter of Credit issued by the Issuing Bank pursuant to this Credit Agreement is issued by the Issuing Bank on behalf of all of the Lenders. In the event that the Issuing Bank is not reimbursed on the date of a drawing under a Letter of Credit, each Lender (other than the Issuing Bank) absolutely, unconditionally and irrevocably agrees to reimburse the Issuing Bank in an amount equal to such Lender's Commitment Percentage of such Unpaid Reimbursement Obligation and to be responsible for its Commitment Percentage of all liabilities incurred by the Issuing Bank in respect of each Letter of Credit opened or extended by the Issuing Bank for the account of the Borrower pursuant to this Credit Agreement. In the event that for any reason (including without limitation as a result of the commencement of any proceedings under any bankruptcy, reorganization, insolvency or other similar law with respect to the Borrower) it is impracticable for any Lender to reimburse the Issuing Bank in an amount equal to such Lender's Commitment Percentage of any drawing under any Letter of Credit, then each such Lender agrees that at the option of the Issuing Bank it shall purchase a participation in, or take an assignment from the Issuing Bank of, the Borrower's obligation to repay the Issuing Bank in respect of such drawing under such Letter of Credit in an amount equal to such Lender's Commitment Percentage of such Unpaid Reimbursement Obligation. The obligations of the Lender hereunder are several and the failure of any Lender to fulfill its obligations shall not result in any Lender becoming obligated to advance more than its Commitment Percentage of such Unpaid Reimbursement Obligation. (b) Each Lender agrees with the Issuing Bank and the other Lenders (other than the Issuing Bank) that its obligations to provide to the Issuing Bank its Commitment Percentage of the amount of any Unpaid Reimbursement Obligation shall be absolute, irrevocable and unconditional and further agrees that such obligations shall not be affected in any way by any intervening circumstances occurring before or after the making of such payment by the Issuing Bank pursuant to any Letter of Credit, including without limitation: -29- (i) any modification or amendment of, or any consent, waiver, release or forbearance with respect to, any of the terms of this Credit Agreement or any other instrument or document referred to herein; (ii) any other act or omission to act of any kind by the Issuing Bank; (iii) the existence of any Default or Event of Default; or (iv) any change of any kind whatsoever in the financial position or creditworthiness of the Borrower or any of its Subsidiaries or any other Person. SECTION 3.5. LETTER OF CREDIT FEE. The Borrower shall, on the first day of each calendar quarter for the immediately preceding calendar quarter, pay to the Issuing Bank a fee (the "LETTER OF CREDIT FEE") for each Letter of Credit issued, extended or renewed during such calendar quarter by the Issuing Bank at a rate per annum equal to (a) with respect to each standby Letter of Credit, the Applicable Margin with respect to Eurodollar Rate Loans in effect from time to time and (b) with respect to documentary Letters of Credit, one-half (1/2) the Applicable Margin with respect to Eurodollar Rate Loans in effect from time to time, in each case, on the Maximum Drawing Amount of such Letter of Credit for the period such Letter of Credit is outstanding. The Issuing Bank shall, in turn, remit to each Lender (including Fleet) such Lender's Commitment Percentage of the Letter of Credit Fee. In addition, in respect of each Letter of Credit, the Borrower shall pay the Issuing Bank for its own account (i) quarterly in arrears on the last day of each calendar quarter, a fronting fee equal to one-tenth of one percent (0.10%) per annum on the Maximum Drawing Amount of such Letter of Credit for the period such Letter of Credit is outstanding, and, (ii) at such other time or times as such charges are customarily made by the Issuing Bank, the Issuing Bank's customary issuance, amendment, negotiation or document examination and other administrative fees as in effect from time to time. SECTION 4. CERTAIN GENERAL PROVISIONS; FEES. SECTION 4.1. CLOSING AND AGENT FEES. The Borrower shall pay (a) to the Agent for the accounts of the Lenders on the Closing Date a closing fee as set forth in that certain letter agreement, dated as of the April 26, 2002 (as such agreement may be amended and in effect from time to time, the "FEE LETTER") by and among the Borrower, the Agent and the Arranger and (b) the fees (the "AGENT FEES") to the Agent and the Arranger in the amounts and at the times set forth in the Fee Letter. SECTION 4.2. OTHER FEES. SECTION 4.2.1. FACILITY FEE. During the Revolver Period, the Borrower agrees to pay to the Agent for the accounts of the Lenders in accordance with their respective Commitment Percentages a facility fee (the "FACILITY FEE"), which shall be calculated for each day at a per annum rate as set forth in the definition of Applicable Margin with respect to the Facility Fee in effect at such time on the Total Commitment. The Facility Fee shall be payable quarterly in arrears on the last day of each calendar quarter for the calendar quarter then ended commencing on the first such date following the Closing Date, with a final payment on the Maturity Date or any earlier date on which the Total Commitment shall terminate. SECTION 4.2.2. UTILIZATION FEE. During the Revolver Period, for any day on which the outstanding principal amount of Loans exceeds an amount equal to thirty-three percent (33%) of -30- the Total Commitment, the Borrower agrees to pay to the Agent for the accounts of the Lenders in accordance with their respective Commitment Percentages a utilization fee (the "UTILIZATION FEE"), which shall be calculated for each day at a per annum rate as set forth in the definition of Applicable Margin with respect to the Utilization Fee in effect at such time on the outstanding principal amount of the Loans. The Utilization Fee shall be payable quarterly in arrears on the last day of each calendar quarter for the calendar quarter then ended commencing on the first such date following the Closing Date, with a final payment on the Maturity Date or any earlier date on which the Total Commitment shall terminate. SECTION 4.3. FUNDS FOR PAYMENTS. SECTION 4.3.1. PAYMENTS TO AGENT. All payments of principal, interest, Facility Fees, Utilization Fees, Letter of Credit Fees and any other fees or amounts due hereunder or under any of the other Loan Documents shall be made to the Agent, for the respective accounts of the Lenders and the Agent, at the Agent's Head Office or at such other location in the Boston, Massachusetts area that the Agent may from time to time designate, in each case in immediately available funds. SECTION 4.3.2. NO OFFSET, ETC. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Borrower is compelled by law to make such deduction or withholding. If any such obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, other than (a) with respect to taxes based upon the Agent's or any Lender's net income, or (b) with respect to amounts owing to a Lender that (i) is not incorporated under the laws of the United States of America or a state thereof and (ii) has not delivered to the Agent the forms referred to in Section 4.3.3 hereof, the Borrower will pay to the Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Agent to receive the same net amount which the Lenders or the Agent would have received on such due date had no such obligation been imposed upon the Borrower. The Borrower will deliver promptly to the Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. SECTION 4.3.3. WITHHOLDING. Each Lender and the Agent that is not a U.S. Person as defined in Section 7701(a)(30) of the Code for federal income tax purposes (a "NON-U.S. LENDER") hereby agrees that, if and to the extent it is legally able to do so, it shall, on the date it becomes a Lender hereunder, deliver to the Borrower and the Agent such certificates, documents or other evidence, as and when required by the Code or Treasury Regulations issued pursuant thereto, including (a) in the case of a Non-U.S. Lender that is a "bank" for purposes of Section 881(c)(3)(A) of the Code, two (2) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8ECI and any other certificate or statement of exemption required by Treasury Regulations, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Lender or the Agent establishing that with respect to payments of principal, interest or fees hereunder it is (i) not subject to United States federal withholding tax under the Code because such payment is effectively connected with the conduct by such Lender or Agent of a trade or business in the United States or (ii) totally exempt from United States -31- federal withholding tax under a provision of an applicable tax treaty and (b) in the case of a Non-U.S. Lender that is not a "bank" for purposes of Section 881(c)(3)(A) of the Code, a certificate in form and substance reasonably satisfactory to the Agent and the Borrower and to the effect that (i) such Non-U.S. Lender is not a "bank" for purposes of Section 881(c)(3)(A) of the Code, is not subject to regulatory or other legal requirements as a bank in any jurisdiction, and has not been treated as a bank for purposes of any tax, securities law or other filing or submission made to any governmental authority, any application made to a rating agency or qualification for any exemption from any tax, securities law or other legal requirements, (ii) is not a ten (10) percent shareholder for purposes of Section 881(c)(3)(B) of the Code and (iii) is not a controlled foreign corporation receiving interest from a related person for purposes of Section 881(c)(3)(C) of the Code, together with a properly completed Internal Revenue Service Form W-8 or W-9, as applicable (or successor forms). Each Lender or the Agent agrees that it shall, promptly upon a change of its lending office or the selection of any additional lending office, to the extent the forms previously delivered by it pursuant to this section are no longer effective, and promptly upon the Borrower's or the Agent's reasonable request after the occurrence of any other event (including the passage of time) requiring the delivery of a Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in replacement of the forms previously delivered, deliver to the Borrower and the Agent, as applicable, if and to the extent it is properly entitled to do so, a properly completed and executed Form W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or any successor forms thereto). SECTION 4.4. COMPUTATIONS. All computations of interest on Base Rate Loans, Swing Line Loans, Facility Fees and other fees shall be based on a 365-day or 366-day year, as applicable, and all computations of interest on Eurodollar Rate Loans and Competitive Bid Loans shall be based on a 360-day year, and, in each case, paid for the actual number of days elapsed. Except as otherwise provided in the definition of the term "INTEREST PERIOD" with respect to Eurodollar Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension. SECTION 4.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the commencement of any Interest Period relating to any Eurodollar Rate Loan, the Agent shall determine or be notified by the Required Lenders that adequate and reasonable methods do not exist for ascertaining the Eurodollar Rate that would otherwise determine the rate of interest