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EXHIBIT 10.1
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
and effective as of September ___, 1999, is among DAISYTEK, INCORPORATED, a
Delaware corporation ("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
CHASE BANK OF TEXAS, N.A., a national banking association ("Chase"), as a lender
and as administrative agent for itself, State Street and First Chicago (State
Street, First Chicago, Chase 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 Chase 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, that certain Second Amendment to
Credit Agreement dated as of November 14, 1996 and effective as of November 18,
1996, that certain Third Amendment to Credit Agreement dated and effective as of
June 30, 1997, that certain Fourth Amendment to Credit Agreement dated and
effective as of December 11, 1997, that certain Fifth Amendment to Credit
Agreement dated as of February 13, 1998 and that certain Sixth Amendment to
Credit Agreement dated as of March 29, 1999 and effective as of March 30, 1999
(as so amended, the "Credit Agreement"), establishing a revolving credit
facility in the aggregate maximum principal amount of $85,000,000; and
WHEREAS, the parties desire to increase the maximum aggregate amount of
permitted unsecured Funded Debt pursuant to section 8.2(m) of the Credit
Agreement from $18,000,000 to $35,000,000.
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. Amendment of Section 8.2(m). Section 8.2(m) of the Credit Agreement
is amended to read in its entirety as follows:
"(m) Limitations on Funded Debt. No Daisytek Corporation shall
permit, as of any date, the creation, incurrence, assumption or
sufferance to exist of Funded Debt of such corporation, other than (i)
the Obligations, (ii) Funded Debt existing on the Closing Date and
fully described in the Initial Financial Statements (other than the
Funded Debt referred
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to in Footnote 2 to the Consolidated financial statements of Guarantor
included in the Prospectus as the revolving line of credit agreement
with commercial banks), (iii) Funded Debt secured as permitted by
Section 8.2(a), (iv) unsecured Funded Debt of up to Ten Million Dollars
($10,000,000) to a Lender incurred under a money market line of credit,
and (v) unsecured Funded Debt of such Daisytek Corporation which,
together with the Funded Debt pursuant to this clause (v) of all other
Daisytek Corporations, does not exceed Thirty-Five Million Dollars
($35,000,000)."
2. 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.
3. Terms of Agreement. Except as expressly amended by this Amendment,
the Credit Agreement is and shall be unchanged.
4. 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.
5. 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) 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, (c) 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 (d) each Daisytek Corporation is in full
compliance with all covenants and agreements contained in the Credit Agreement,
as amended hereby.
6. 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 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.
7. 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. PURSUANT TO
SECTION 346.004 OF THE TEXAS FINANCE CODE, CHAPTER 346 OF THE TEXAS FINANCE CODE
SHALL NOT APPLY TO THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, THE
NOTES, OR ANY ADVANCE OR LOAN EVIDENCED BY THE NOTES.
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8. 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.
9. 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.
10. 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, 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.
11. WAIVER OF CONSUMER/DTPA RIGHTS. EACH DAISYTEK CORPORATION HEREBY
WAIVES ALL OF ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT (TEX. BUS. & COM. CODE SECTION 17.41 ET SEQ.), A LAW THAT GIVES
CONSUMERS SPECIAL RIGHTS
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AND PROTECTIONS, AND REPRESENTS AND WARRANTS TO EACH LENDER THAT SUCH
CORPORATION (A) 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, (B) IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION, AND (C) IS REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH SUCH TRANSACTIONS.
12. 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:
---------------------------------
Name:
-------------------------------
Title:
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GUARANTOR:
DAISYTEK INTERNATIONAL
CORPORATION
By:
---------------------------------
Name:
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Title:
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SUBSIDIARY GUARANTORS: DAISYTEK (CANADA) INC., a
Canadian corporation
DAISYTEK ASIA PTE LTD, a Singapore
corporation
By:
By: ---------------------------------
--------------------------------- Name:
Name: -------------------------------
------------------------------- Title:
Title: ------------------------------
------------------------------
DAISYTEK DE MEXICO, S.A. DE C.V.,
a Mexican corporation
DAISYTEK AUSTRALIA PTY. LTD.
(ACN 075 675 795), an Australian
corporation By:
---------------------------------
By: Name:
--------------------------------- -------------------------------
Name: Title:
------------------------------- ------------------------------
Title:
------------------------------
DAISYTEK DE MEXICO SERVICES, S.A.
DE C.V., a Mexican corporation
By:
---------------------------------
Name:
-------------------------------
Title:
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DAISYTEK LATIN AMERICA, INC., PRIORITY FULFILLMENT SERVICES
a Florida corporation OF CANADA, INC., a Canadian
corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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HOME TECH DEPOT, INC., a STEADI-SYSTEMS, LTD.,
Delaware corporation a California corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
PRIORITY FULFILLMENT SERVICES STEADI SYSTEMS MIAMI, INC.,
DE MEXICO, S.A. DE C.V., a a Florida corporation
Mexican corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
PRIORITY FULFILLMENT SERVICES, STEADI SYSTEMS NEW YORK, INC.,
INC., a Delaware corporation a New York corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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PRIORITY FULFILLMENT SERVICES OF SUPPLIES EXPRESS, INC., a
AUSTRALIA PTY. LIMITED, Delaware corporation
(ACN 077 906 462), an Australian
corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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WORKING CAPITAL OF AMERICA, THE TAPE COMPANY, INC.,
INC., a Delaware corporation an Ohio corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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THE TAPE COMPANY, INC., THE TAPE COMPANY, INC.,
an Illinois corporation a Minnesota corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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THE TAPE COMPANY, INC., TAPE DISTRIBUTORS OF TEXAS, INC.,
a Georgia corporation a Texas corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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THE TAPE COMPANY, INC., BUSINESS SUPPLIES DISTRIBUTORS,
a Pennsylvania corporation INC., a Delaware corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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PFSWEB, INC., a Delaware BUSINESS SUPPLIES DISTRIBUTOR
corporation EUROPE B.V., a Dutch corporation
By: By:
--------------------------------- ---------------------------------
Name: Name:
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Title: Title:
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BSD DISTRIBUTORS, (CANADA) AGENT:
INC., a Canadian corporation
CHASE BANK OF TEXAS, N.A.,
a national banking association
By:
---------------------------------
Name: By:
------------------------------- ---------------------------------
Title: Name:
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Title:
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LENDERS:
CHASE BANK OF TEXAS, N.A.
a national banking association
By:
---------------------------------
Name:
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Title:
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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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Kathy Turner,
Authorized Agent
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