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Exhibit 10.5
PARENT GUARANTY
THIS PARENT GUARANTY (this "Guaranty") is made as of the 18th day of
December, 2000 by Daisytek International Corporation, a Delaware corporation
(the "Guarantor") in favor of the Agent, for the benefit of the Lenders and the
LC Issuer, under the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, Daisytek, Incorporated, a Delaware corporation (the
"Principal") and Bank One, Texas, NA, a national banking association having its
principal office in Chicago, Illinois, as Administrative Agent (the "Agent"),
the LC Issuer and certain other Lenders from time to time party thereto have
entered into a certain Credit Agreement dated as of even date herewith (as same
may be amended or modified from time to time, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
to be made by the Lenders and the LC Issuer to the Principal;
WHEREAS, it is a condition precedent to the Agent, LC Issuer and the
Lenders executing the Credit Agreement that the Guarantor execute and deliver
this Guaranty whereby the Guarantor shall guarantee the payment when due, of all
Guaranteed Obligations, as defined below; and
WHEREAS, in order to induce the Lenders, the LC Issuer and the Agent to
enter into the Credit Agreement, and the Lenders and their Affiliates to enter
into one or more Rate Management Transactions with the Principal, and because
the Guarantor has determined that executing this Guaranty is in its interest, in
furtherance of its business and to its financial benefit, and is necessary to
the conduct, promotion and attainment of its business and that of the Principal,
the Guarantor is willing to guarantee the obligations of the Principal under the
Credit Agreement, any Note, any Rate Management Transaction, and the other Loan
Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.1. Selected Terms Used Herein.
"Guaranteed Obligations" is defined in Section 3 below.
SECTION 1.2. Terms in Credit Agreement. Other capitalized terms used
herein but not defined herein shall have the meaning set forth in the Credit
Agreement.
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SECTION 2.1. Representations and Warranties. The Guarantor represents
and warrants (which representations and warranties shall be deemed to have been
renewed upon each Credit Extension under the Credit Agreement) that:
(a) It is a corporation, duly and properly incorporated,
validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of the State of Delaware and
has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
(b) It has the power and authority and legal right to execute
and deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by it of this Guaranty and the performance of
its obligations hereunder have been duly authorized by proper corporate
proceedings, and this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable against it in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally.
(c) Neither the execution and delivery by it of this Guaranty,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof will violate (i) any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding
on it or any of its Subsidiaries or (ii) its certificate of
incorporation, by-laws, or operating or other management agreement, as
the case may be, or (iii) the provisions of any indenture, instrument
or agreement to which it or any of its Subsidiaries is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation
or imposition of any Lien in, of or on the Property of the Guarantor or
any Subsidiary of the Guarantor pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by it or any of its
Subsidiaries, is required to be obtained by it or any of its
Subsidiaries in connection with the execution and delivery of this
Guaranty or the performance by it of its obligations hereunder or the
legality, validity, binding effect or enforceability of this Guaranty.
SECTION 2.2. Covenants. The Guarantor covenants that, so long as any
Lender or the LC Issuer has any Credit Extension outstanding under the Credit
Agreement, any Rate Management Transaction remains in effect or any of the
Guaranteed Obligations shall remain unpaid, that it will, and, if necessary,
will enable or cause the Principal to, fully comply with those covenants and
agreements set forth in the Credit Agreement.
SECTION 3. The Guaranty. The Guarantor hereby absolutely and
unconditionally guarantees, as primary obligor and not as surety, the full and
punctual payment (whether at stated maturity, upon acceleration or early
termination or otherwise, and at all times thereafter) and
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performance of the Secured Obligations, including without limitation any such
Secured Obligations incurred or accrued during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, whether or not allowed or
allowable in such proceeding (referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Principal to pay punctually any such amount,
the Guarantor agrees that it shall forthwith on demand pay to the Agent for the
benefit of the Lenders, the LC Issuer and, if applicable, their Affiliates, the
amount not so paid at the place and in the manner specified in the Credit
Agreement, any Note, the Pledge and Security Agreement, any Rate Management
Transaction or the relevant Loan Document, as the case may be. This Guaranty is
a guaranty of payment and not of collection. The Guarantor waives any right to
require any Lender or the LC Issuer to sue the Principal, any other guarantor,
or any other Person obligated for all or any part of the Guaranteed Obligations,
or otherwise to enforce its payment against any collateral securing all or any
part of the Guaranteed Obligations.
SECTION 4. Guaranty Unconditional. The obligations of the Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any of the Guaranteed Obligations, by operation
of law or otherwise, or any obligation of any other guarantor of any of
the Guaranteed Obligations, or any default, failure or delay, willful
or otherwise, in the payment or performance of the Guaranteed
Obligations;
(ii) any modification or amendment of or supplement to the
Credit Agreement, any Note, any Rate Management Transaction or any
other Loan Document;
(iii) any release, nonperfection or invalidity of any direct
or indirect security for any obligation of the Principal under the
Credit Agreement, any Note, the Pledge and Security Agreement, any Rate
Management Transaction, any other Loan Document, or any obligations of
any other guarantor of any of the Guaranteed Obligations, or any action
or failure to act by the Agent, the LC Issuer, any Lender or any
Affiliate of any Lender with respect to any collateral securing all or
any part of the Guaranteed Obligations;
(iv) any change in the corporate existence, structure or
ownership of the Principal or any other guarantor or of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Principal, or any other
guarantor of the Guaranteed Obligations, or its assets or any resulting
release or discharge of any obligation of the Principal, or any other
guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which
the Guarantor may have at any time against the Principal, any other
guarantor of any of the Guaranteed Obligations, the Agent, the LC
Issuer, any Lender or any other Person, whether in connection herewith
or any unrelated transactions;
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(vi) any invalidity or unenforceability relating to or against
the Principal, or any other guarantor of any of the Guaranteed
Obligations, for any reason related to the Credit Agreement, the Pledge
and Security Agreement, any Rate Management Transaction, any other Loan
Document, or any provision of applicable law or regulation purporting
to prohibit the payment by the Principal, or any other guarantor of the
Guaranteed Obligations, of the principal of or interest on any Note or
any other amount payable by the Principal under the Credit Agreement,
the Pledge and Security Agreement, any Note, any Rate Management
Transaction or any other Loan Document; or
(vii) any other act or omission to act or delay of any kind by
the Principal, any other guarantor of the Guaranteed Obligations, the
Agent, the LC Issuer, any Lender or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Guarantor's
obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In
Certain Circumstances. The Guarantor's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been
indefeasibly paid in full, the Commitments under the Credit Agreement shall have
terminated or expired and all Rate Management Transactions have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Principal or any other party under the Credit
Agreement, any Rate Management Transaction or any other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Principal or otherwise, the Guarantor's
obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
SECTION 6. Waivers. The Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and, to the fullest extent permitted by law, any
notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against the Principal, any other guarantor of any
of the Guaranteed Obligations, or any other Person.
SECTION 7. Subrogation. The Guarantor hereby agrees not to assert any
right, claim or cause of action, including, without limitation, a claim for
subrogation, reimbursement, indemnification or otherwise, against the Principal
arising out of or by reason of this Guaranty or the obligations hereunder,
including, without limitation, the payment or securing or purchasing of any of
the Guaranteed Obligations by any of the Subsidiary Guarantors or any other
Person unless and until the Guaranteed Obligations are indefeasibly paid in
full, any commitment to lend under the Credit Agreement and any other Loan
Documents is terminated and all Rate Management Transactions have terminated or
expired.
SECTION 8. Stay of Acceleration. If acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Principal, all such amounts otherwise
subject to acceleration under the terms of the Credit Agreement, any Note, any
Rate Management Transaction or any other Loan Document shall nonetheless be
payable by the Guarantor forthwith on demand by the Agent made at the request of
the Required Lenders.
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SECTION 9. Application of Payments. All payments received by the Agent
hereunder shall be applied by the Agent to payment of the Guaranteed Obligations
in the following order unless a court of competent jurisdiction shall otherwise
direct:
(a) FIRST, to payment of all costs and expenses of the Agent
incurred in connection with the collection and enforcement of the
Guaranteed Obligations or of any security interest granted to the Agent
in connection with any collateral securing the Guaranteed Obligations;
(b) SECOND, to payment of that portion of the Guaranteed
Obligations constituting accrued and unpaid interest and fees, pro rata
among the Lenders, the LC Issuer and their Affiliates in accordance
with the amount of such accrued and unpaid interest and fees owing to
each of them;
(c) THIRD, to payment of the principal of the Guaranteed
Obligations and the net early termination payments and any other Rate
Management Obligations then due and unpaid from the Principal to any of
the Lenders or their Affiliates, pro rata among the Lenders and their
Affiliates in accordance with the amount of such principal and such net
early termination payments and other Rate Management Obligations then
due and unpaid owing to each of them; and
(d) FOURTH, to payment of any Guaranteed Obligations (other
than those listed above) pro rata among those parties to whom such
Guaranteed Obligations are due in accordance with the amounts owing to
each of them.
SECTION 10. Notices. All notices, requests and other communications to
any party hereunder shall be given or made by telecopier or other writing and
telecopied, or mailed or delivered to the intended recipient at its address or
telecopier number set forth in the Credit Agreement or such other address or
telecopy number as such party may hereafter specify for such purpose by notice
to the Agent in accordance with the provisions of Article XIII of the Credit
Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice sent by
certified mail return-receipt requested, on the date set forth on the receipt
(provided, that any refusal to accept any such notice shall be deemed to be
notice thereof as of the time of any such refusal), in each case given or
addressed as aforesaid.
SECTION 11. No Waivers. No failure or delay by the Agent, the LC Issuer
or any Lenders in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided in this Guaranty,
the Credit Agreement, any Note, any Rate Management Transaction and the other
Loan Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
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SECTION 12. No Duty to Advise. The Guarantor assumes all responsibility
for being and keeping itself informed of the Principal's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
the Guarantor assumes and incurs under this Guaranty, and agrees that neither
the Agent, the LC Issuer nor any Lender has any duty to advise the Guarantor of
information known to it regarding those circumstances or risks.
SECTION 13. Successors and Assigns. This Guaranty is for the benefit of
the Agent, the LC Issuer and the Lenders and their respective successors and
permitted assigns and in the event of an assignment of any amounts payable under
the Credit Agreement, any Note, any Rate Management Transaction, or the other
Loan Documents, the rights hereunder, to the extent applicable to the
indebtedness so assigned, shall be transferred with such indebtedness. This
Guaranty shall be binding upon the Guarantor and its respective successors and
permitted assigns.
SECTION 14. Changes in Writing. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by the Guarantor and the Agent with the consent of the Required
Lenders.
SECTION 15. Costs of Enforcement. The Guarantor agrees to pay all costs
and expenses including, without limitation, all court costs and attorneys' fees
and expenses paid or incurred by the Agent, the LC Issuer, any Lender or any
Affiliate of any Lender in endeavoring to collect all or any part of the
Guaranteed Obligations from, or in prosecuting any action against, the
Principal, the Guarantor or any other guarantor of all or any part of the
Guaranteed Obligations.
SECTION 16. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF TEXAS. THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS AND OF ANY TEXAS STATE COURT SITTING IN DALLAS, TEXAS AND FOR PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY (INCLUDING,
WITHOUT LIMITATION, ANY OF THE OTHER LOAN DOCUMENTS) OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE GUARANTOR AND THE AGENT, THE LC ISSUER, AND THE LENDERS ACCEPTING
THIS GUARANTY, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 17. Taxes. etc. All payments required to be made by the
Guarantor hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or
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withholding for or on account of, any present or future taxes, levies, imposts,
duties or other charges of whatsoever nature imposed by any government or any
political or taxing authority thereof (but excluding Excluded Taxes), provided,
however, that if the Guarantor is required by law to make such deduction or
withholding, the Guarantor shall forthwith (i) pay to the Agent, the LC Issuer
or any Lender, as applicable, such additional amount as results in the net
amount received by the Agent, the LC Issuer or any Lender, as applicable,
equaling the full amount which would have been received by the Agent, the LC
Issuer or any Lender, as applicable, had no such deduction or withholding been
made, (ii) pay the full amount deducted to the relevant authority in accordance
with applicable law, and (iii) furnish to the Agent, the LC Issuer or any
Lender, as applicable, certified copies of official receipts evidencing payment
of such withholding taxes within 30 days after such payment is made.
SECTION 18. Setoff. Without limiting the rights of the Agent, the LC
Issuer, or the Lenders under applicable law, if all or any part of the
Guaranteed Obligations is then due, whether pursuant to the occurrence of a
Default or otherwise, then the Guarantor authorizes the Agent, the LC Issuer,
and the Lenders to apply any sums standing to the credit of the Guarantor with
the Agent, the LC Issuer or any Lender or any Lending Installation of the Agent
or any Lender toward the payment of the Guaranteed Obligations.
SECTION 19. ENTIRE AGREEMENT. THIS AGREEMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed, under seal, by its authorized officer as of the day and year first
above written.
DAISYTEK INTERNATIONAL CORPORATION
By: /s/ Ralph Mitchell
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Name: Ralph Mitchell
Title: Executive Vice President-Finance
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