EXHIBIT 10.32
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated as of May
31, 2002 (the "Amendment Effective Date"), is executed and entered into by and
among Daisytek International Corporation, a Delaware corporation (the "Parent"),
and each of the Parent's undersigned Subsidiaries party hereto (collectively,
the "Borrowers" and together with the Parent, the "Obligated Parties"), Bank of
America, National Association, in its capacity as administrative agent (the
"Agent"), and each of the financial institutions party hereto (the "Lenders")
under the agreement defined below, as follows:
RECITALS:
A. The Obligated Parties, the Agent, and the Lenders have entered into
that certain Credit Agreement dated as of April 24, 2002 (the "Agreement")
pursuant to which the Lenders have provided certain credit facilities to the
Borrowers.
B. The Obligated Parties have requested that, the Agent and the Lenders
amend certain provisions of the Agreement as provided hereinbelow.
C. Subject to satisfaction of the conditions set forth herein, the
Agent and the Lenders are willing to amend the Agreement as specifically
provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Unless otherwise defined in this Amendment,
capitalized terms used in this Amendment shall have the same meaning in this
Amendment as are given to such terms in the Agreement, as amended hereby.
ARTICLE 2
Amendments
Section 2.1 Amendment to Annex A. Each of the following amendments to the
definitions in Annex A of the Credit Agreement is effective as of the Amendment
Effective Date:
(a) The reference to "$3,000,000" in the proviso in clause (g) of
the definition of "Eligible Accounts" is amended to read "$3,529,415".
FIRST AMENDMENT TO CREDIT AGREEMENT - Page 1
(b) the definition of "Fixed Charge Coverage Ratio" is amended and
restated to read in its entirety as follows:
"Fixed Charge Coverage Ratio" means, as of the end of any
fiscal period, the ratio of EBITDA to Fixed Charges.
(c) The reference to "July 31, 2002" in clause (I) of the
definition of "Permitted Acquisition" is amended to read "September 30,
2002".
Section 2.2 Amendment to Section 7.24. Effective as of the Amendment
Effective Date, Section 7.24 of the Agreement is hereby amended and restated in
its entirety to read as follows:
Section 7.24 Borrowers' Fixed Charge Coverage Ratio. The Obligated
Parties will not permit the Fixed Charge Coverage Ratio determined for the
Borrowers on a consolidated basis for the preceding six (6) months to be
less than 1.00 to 1.00.
ARTICLE 3
Conditions
Section 3.1 Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) The Agent shall have received all of the following, each dated
the date of this Amendment (unless otherwise indicated), in form and
substance satisfactory to the Agent:
(i) Amendment Documents. This Amendment and any other
instrument, document, or certificate reasonably required by the
Agent to be executed or delivered by the Obligated Parties in
connection with this Amendment, in each case duly executed (the
"Amendment Documents");
(ii) Additional Information. The Agent shall have received
such additional documents, instruments, and information as the Agent
may reasonably request to effect the transactions contemplated
hereby; and
(iii) the Borrowers shall have paid to the Agent all fees,
costs, and expenses owed to and/or incurred by the Agent in
connection with the Agreement or this Amendment.
(b) The representations and warranties contained herein, in the
Agreement and in all other Loan Documents, as amended hereby, shall be
true and correct in all material
FIRST AMENDMENT TO CREDIT AGREEMENT - Page 2
respects as of the date hereof as if made on the date hereof except for
such representations and warranties limited by their terms to a specific
date.
(c) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements,
documents, and instruments executed and/or delivered pursuant hereto, and
all legal matters incident thereto, shall be satisfactory to the Agent;
and
(d) No Default or Event of Default shall be in existence after
giving effect to this Amendment.
ARTICLE 4
Miscellaneous
Section 4.1 Representations and Warranties. Each of the Obligated Parties
hereby represents and warrants to the Agent that, as of the date of and after
giving effect to this Amendment, (a) the execution, delivery, and performance of
this Amendment and any and all other Amendment Documents executed and/or
delivered in connection herewith have been authorized by all requisite action on
the part of such Obligated Party and will not violate such Obligated Party's
organizational or governing documents, (b) the representations and warranties
contained in the Agreement and in the other Loan Documents are true and correct
on and as of the date hereof, in all material respects, as if made again on and
as of the date hereof except for such representations and warranties limited by
their terms to a specific date, and (c) after giving effect to this Amendment,
no Default or Event of Default exists.
Section 4.2 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan
Document, including any Loan Document furnished in connection with this
Amendment, shall survive the execution and delivery of this Amendment and the
other Loan Documents, and no investigation by the Agent or any Lender, or any
closing, shall affect the representations and warranties or the right of the
Agent and the Lenders to rely upon them.
Section 4.3 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and, except as expressly superseded by this Amendment,
the terms and provisions of the Agreement and the other Loan Documents are
ratified and confirmed and shall continue in full force and effect. The
Obligated Parties, the Agent, and the Lenders agree that the Agreement as
amended hereby and the other Loan Documents shall continue to be legal, valid,
binding, and enforceable in accordance with their respective terms.
Section 4.4 Reference to Agreement. Each of the Loan Documents, including
the Agreement, the Amendment Documents, and any and all other agreements,
documents, or instruments now or hereafter executed and delivered pursuant to
the terms hereof or pursuant to the terms of the Agreement as amended hereby,
are hereby amended so that any reference in
FIRST AMENDMENT TO CREDIT AGREEMENT - Page 3
such Loan Documents to the Agreement, whether direct or indirect, shall mean a
reference to the Agreement as amended hereby.
Section 4.5 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 4.6 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE U.S.
Section 4.7 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Obligated Parties, the Agent, and the Lenders
and their respective successors and assigns, except no Obligated Party may
assign or transfer any of its respective rights or obligations hereunder without
the prior written consent of the Lenders.
Section 4.8 Counterparts. This Amendment may be executed in one or more
counterparts, and on telecopy counterparts each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 4.9 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 4.10 Entire Agreement. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, 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.
[Remainder of Page Intentionally Left Blank]
FIRST AMENDMENT TO CREDIT AGREEMENT - Page 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers in several counterparts effective as
of the Effective Date specified in the preamble hereof.
OBLIGATED PARTIES
THE PARENT:
DAISYTEK INTERNATIONAL CORPORATION
By: ____________________________________
Ralph Mitchell
Executive Vice President, Chief
Financial Officer, and Treasurer
BORROWERS:
DAISYTEK, INCORPORATED
ARLINGTON INDUSTRIES, INC.
DAISYTEK LATIN AMERICA, INC.
DIGITAL STORAGE, INC.
B.A. PARGH COMPANY
THE TAPE COMPANY
TAPEBARGAINS.COM, INC.
VIRTUAL DEMAND, INC.
By: ____________________________________
Ralph Mitchell
Executive Vice President, Chief
Financial Officer, and Treasurer
AGENT:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Agent
By: ____________________________________
Name: __________________________________
Title: _________________________________
FIRST AMENDMENT TO CREDIT AGREEMENT - Page 5
LENDERS:
BANK OF AMERICA, NATIONAL ASSOCIATION
By: ____________________________________
Name: __________________________________
Title: _________________________________
FIRST AMENDMENT TO CREDIT AGREEMENT - Page 6