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EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated and
effective as of June 30, 1997, is among DAISYTEK, INCORPORATED, a Delaware
corporation (hereinafter referred to as "Borrower"), DAISYTEK INTERNATIONAL
CORPORATION, a Delaware corporation ("Guarantor"), each of Borrower's
Subsidiaries identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages of this Amendment or that, pursuant to Section 8.1(n) of the
Credit Agreement (as hereinafter defined), become a "Subsidiary Guarantor"
(individually, a "Subsidiary Guarantor," and, collectively, the "Subsidiary
Guarantors"), STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
("State Street"), THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association ("First Chicago"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association ("TCB"), as a lender and as administrative agent
for itself, State Street and First Chicago (State Street, First Chicago, TCB
and any assignee lender pursuant to Section 11.4A of the Credit Agreement being
referred to, collectively, as "Lenders"). All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Credit Agreement.
RECITALS
WHEREAS, Borrower, Guarantor, certain Subsidiary Guarantors, State
Street, First Chicago (as assignee, effective June 30, 1997, of NBD Bank, a
Michigan banking corporation) and TCB are parties to that certain Credit
Agreement dated as of May 22, 1995, as amended by that certain First Amendment
to Credit Agreement dated as of April 15, 1996 and that certain Second
Amendment to Credit Agreement dated as of November 14, 1996 and effective as of
November 18, 1996 (as so amended, the "Credit Agreement"), establishing a
revolving credit facility in the aggregate maximum principal amount of
$50,000,000, with funding commitments thereunder shared forty percent (40%) by
TCB, forty percent (40%) by State Street and twenty percent (20%) by First
Chicago; and
WHEREAS, the parties desire to extend the Loan Maturity Date from May
22, 1998 to July 1, 1999.
NOW, THEREFORE, in consideration of the recitals set forth above, the
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower, Guarantor,
Subsidiary Guarantors and Lenders hereby agree as follows:
1. Amended Definition. The following definition in Section
1.1 of the Credit Agreement is amended to read in its entirety as follows:
""Loan Maturity Date" means July 1, 1999, unless such date
occurs earlier pursuant to Article X."
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2. Amendment of Section 11.3 Lenders' names and addresses as
set forth in Section 11.3 of the Credit Agreement are amended to read in their
entirety as follows:
"Texas Commerce Bank National Association
2200 Ross Avenue, Third Floor
Dallas, Texas 75201
Attention: J. Kevin Kelty, Senior Vice President
Telecopy: 214-965-2990
State Street Bank and Trust Company
225 Franklin Street - M8
Boston, Massachusetts 02110
Attention: Michael St. Jean
Telecopy: 617-338-4041
The First National Bank of Chicago
One First National Plaza, Suite 0088
Chicago, Illinois 60670
Attention: Cory M. Olson
Telecopy: 312-732-1117
As to any Lender who becomes such pursuant to Section 11.4A,
to such Lender at its address given to Agent."
3. Conditions to Effectiveness. The effectiveness of this
Amendment is conditioned upon the prior receipt by Agent of the documentation
set forth below:
(a) Certificates. A certificate of the Secretary of each
Daisytek Corporation, dated as of the date of this Amendment, to the
effect that, except for an increase in the number of authorized shares
of common stock of Guarantor, no changes have occurred to the
certificates of incorporation (and other equivalent charter documents)
and by-laws of the Daisytek Corporations, and no changes have occurred
in the incumbency of officers of the Daisytek Corporations authorized
to execute or attest any of the Loan Documents, in each case since the
Closing Date, except as expressly described in such certificate;
(b) Resolutions. Copies of resolutions of the Board of
Directors of each Daisytek Corporation, satisfactory to Lenders,
approving the execution and delivery of this Amendment and such of the
other Loan Documents to which such corporation is a party and
authorizing the performance of the obligations of such corporation
contemplated in this Amendment and in such other Loan Documents,
accompanied by a certificate of the Secretary of such corporation,
dated as of the date of this Amendment, that such copies are complete
and correct copies of resolutions duly adopted at a meeting of such
Board of Directors, and that such resolutions have not been amended,
modified or revoked in any respect, and are in full force and effect
as of the date of this Amendment;
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(c) Other Certificates. Certificates of each Daisytek
Corporation's existence, good standing and qualification to do
business, issued by appropriate officials in any state in which such
corporation is incorporated, owns property or otherwise qualified, or
required to qualify, to do business;
(d) Opinion of Counsel. An executed opinion of Wolff &
Samson, P.C., Roseland, New Jersey, counsel to the Daisytek
Corporations, dated as of the date of this Amendment and in form and
substance satisfactory to Lenders and their counsel; and
(e) Other Documents. Any and all other documents or
certificates reasonably requested by a Lender in connection with the
execution of this Amendment."
4. Other Documents. Borrower shall provide such other documents
incidental and appropriate to this Amendment as Agent or Agent's counsel may
reasonably request, all such documents being in form and substance reasonably
satisfactory to Agent.
5. Terms of Agreement. Except as expressly amended by this
Amendment, the Credit Agreement is and shall be unchanged.
6. Effect of Amendment. The Credit Agreement and any and all other
documents heretofore, now or hereafter executed and delivered pursuant to the
terms of the Credit Agreement are hereby amended so that any reference to the
Credit Agreement in the Credit Agreement or the other documents shall mean a
reference to the Credit Agreement as amended hereby.
7. Reaffirmation; No Default. Each Daisytek Corporation hereby
represents and warrants to Lenders that (a) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed and
delivered in connection herewith have been authorized by all requisite
corporate action on the part of such Daisytek Corporation and will not violate
the certificate of incorporation (or other charter documents) or bylaws of any
Daisytek Corporation, (b) except for an increase in the number of authorized
shares of common stock of Guarantor, neither the certificate of incorporation
(or other charter documents) nor bylaws of any Daisytek Corporation have been
amended or revoked since May 22, 1995, (c) the representations and warranties
contained in the Credit Agreement, as amended by this Amendment, and any other
Loan Document are true and correct on and as of the date hereof as though made
on and as of the date hereof, (d) no Event of Default has occurred and is
continuing and no event or condition has occurred that with the giving of
notice or lapse of time or both would be an Event of Default, and (e) each
Daisytek Corporation is in full compliance with all covenants and agreements
contained in the Credit Agreement, as amended hereby.
8. Enforceability. Each Daisytek Corporation hereby represents and
warrants that, as of the date of this Amendment, the Credit Agreement and all
documents and instruments executed in
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connection therewith are in full force and effect and that there are no claims,
counterclaims, offsets or defenses to any of such documents or instruments.
9. GOVERNING LAW. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
DEEMED CONTRACTS AND INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF TEXAS AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA. CHAPTER 15 OF
TEXAS REVISED CIVIL STATUTES ARTICLE 5069 (WHICH REGULATES CERTAIN REVOLVING
CREDIT LOAN ACCOUNTS AND REVOLVING TRI-PARTY ACCOUNTS) SHALL NOT APPLY TO THE
CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, OR THE NOTES.
10. Maximum Interest Rate. Regardless of any provisions contained in
this Amendment or in any other Loan Documents, Lenders shall never be deemed to
have contracted for or be entitled to receive, collect or apply as interest on
the Notes or otherwise any amount in excess of the maximum rate of interest
permitted to be charged by applicable law, and if Lenders ever receive, collect
or apply as interest any such excess, or if acceleration of the maturity of the
Notes or if any prepayment by Borrower results in Borrower having paid any
interest in excess of the maximum rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance of
the Notes for which such excess was received, collected or applied, and, if the
principal balances of Notes are paid in full, any remaining excess shall
forthwith be paid to Borrower. All sums paid or agreed to be paid to Lenders
for the use, forbearance or detention of the indebtedness evidenced by the
Notes and/or the Credit Agreement, as amended by this Amendment, shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full term of such indebtedness until payment in full so
that the rate or amount of interest on account of such indebtedness does not
exceed the maximum lawful rate permitted under applicable law. In determining
whether or not the interest paid or payable under any specific contingency
exceeds the maximum rate of interest permitted by law, Borrower and Lenders
shall, to the maximum extent permitted under applicable law, (i) characterize
any non-principal payment as an expense, fee or premium, rather than as
interest; and (ii) exclude voluntary prepayments and the effect thereof; and
(iii) compare the total amount of interest contracted for, charged or received
with the total amount of interest which could be contracted for, charged or
received throughout the entire contemplated term of the Notes at the maximum
lawful rate under applicable law.
11. Counterparts. This Amendment may be separately executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment.
12. WAIVER OF TRIAL BY JURY. EACH DAISYTEK CORPORATION WAIVES ANY AND
ALL RIGHTS THAT IT MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM OR
OTHER ACTION, OF ANY NATURE WHATSOEVER,
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RELATING TO OR ARISING OUT OF THIS AMENDMENT, ANY OF THE OTHER LOAN DOCUMENTS
OR THE OBLIGATIONS. EACH DAISYTEK CORPORATION ACKNOWLEDGES THAT THE FOREGOING
JURY TRIAL WAIVER IS A MATERIAL INDUCEMENT TO EACH LENDER'S ENTERING INTO THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS AND THAT EACH LENDER IS RELYING ON SUCH
WAIVER IN ITS FUTURE DEALINGS WITH SUCH CORPORATION. EACH SUCH CORPORATION
WARRANTS AND REPRESENTS TO EACH LENDER THAT SUCH CORPORATION HAS REVIEWED THE
FOREGOING JURY TRIAL WAIVER WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND
VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH SUCH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, THE FOREGOING JURY TRIAL WAIVER MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
13. WAIVER OF DTPA RIGHTS. EACH DAISYTEK CORPORATION HEREBY WAIVES ALL
OF ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION
ACT (TEX. BUS. & COM. CODE SS. 17.41 ET SEQ.), A LAW THAT GIVES CONSUMERS
SPECIAL RIGHTS AND PROTECTIONS, AND REPRESENTS AND WARRANTS TO EACH LENDER THAT
SUCH CORPORATION (A) HAS ASSETS OF $5,000,000 OR MORE (EXCEPT THAT ONLY
BORROWER, GUARANTOR AND DAISYTEK (CANADA) INC. MAKE THE REPRESENTATION IN THIS
CLAUSE (A)), (B) HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS
THAT ENABLE SUCH CORPORATION TO EVALUATE THE MERITS AND RISKS OF THE
TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT, (C) IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION, AND (D) IS REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH SUCH TRANSACTIONS.
14. OTHER AGREEMENTS. THE CREDIT AGREEMENT, AS AMENDED BY THIS
AMENDMENT, AND THE OTHER LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT BETWEEN THE
PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, IF ANY, RELATING
TO THE SUBJECT MATTER HEREOF AND THEREOF. THE WRITTEN CREDIT AGREEMENT, AS
AMENDED BY THIS AMENDMENT, REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES.
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THIS AMENDMENT is executed and effective as of the date first written
above.
BORROWER:
DAISYTEK, INCORPORATED
By:
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Name:
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Title:
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GUARANTOR:
DAISYTEK INTERNATIONAL CORPORATION
By:
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Name:
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Title:
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SUBSIDIARY GUARANTORS:
WORKING CAPITAL OF AMERICA, INC.,
a Delaware corporation
By:
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Name:
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Title:
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HOME TECH DEPOT, INC.,
a Delaware corporation
By:
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Name:
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Title:
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DAISYTEK (CANADA) INC.,
a Canadian corporation
By:
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Name:
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Title:
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WORKING CAPITAL CANADA INC.,
a Canadian corporation
By:
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Name:
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Title:
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DAISYTEK DE MEXICO, S.A. DE C.V.,
a Mexican corporation
By:
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Name:
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Title:
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SUPPLIES EXPRESS, INC.,
a Delaware corporation
By:
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Name:
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Title:
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DAISYTEK LATIN AMERICA, INC.,
a Florida corporation
By:
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Name:
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Title:
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PRIORITY FULFILLMENT SERVICES DE MEXICO,
S.A. DE C.V., a Mexican corporation
By:
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Name:
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Title:
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DAISYTEK DE MEXICO SERVICES, S.A. DE C.V.,
a Mexican corporation
By:
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Name:
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Title:
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PRIORITY FULFILLMENT SERVICES, INC.,
a Delaware corporation
By:
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Name:
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Title:
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DAISYTEK AUSTRALIA PTY. LIMITED,
an Australian corporation
By:
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Name:
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Title:
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PRIORITY FULFILLMENT SERVICES
OF CANADA, INC.,
a Canadian corporation
By:
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Name:
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Title:
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AGENT:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
a national banking association
By:
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J. Kevin Kelty
Senior Vice President
LENDERS:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association
By:
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J. Kevin Kelty,
Senior Vice President
STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust
By:
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Michael St. Jean,
Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association
By:
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Corey M. Olson,
Vice President
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