1
EXHIBIT 10.3
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
October 29, 1999 and effective as of November 1, 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"), CITIZENS BANK OF MASSACHUSETTS, a Massachusetts stock savings
bank, by assignment from State Street Bank and Trust Company, a Massachusetts
trust ("Citizens"), BANK ONE, NA (Main Office Chicago), a national banking
association formerly named The First National Bank of Chicago ("Bank One"), IBM
CREDIT CORPORATION, a Delaware corporation ("IBM Credit"), and CHASE BANK OF
TEXAS, N.A., a national banking association ("Chase"), as a lender and as
administrative agent for itself, Citizens, Bank One and IBM Credit (Citizens,
Bank One, IBM Credit, 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, Citizens, Bank
One (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, that certain Sixth Amendment to Credit Agreement dated as
of March 29, 1999 and effective as of March 30, 1999 that certain Seventh
Amendment to Credit Agreement dated as of September 10, 1999 and that certain
Eighth Amendment to Credit Agreement dated as of September 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 amend the Credit Agreement to increase the
aggregate maximum principal amount under such revolving credit facility from
$85,000,000 to $105,000,000, with funding commitments thereunder to be shared
$25,000,000 by Citizens, $30,000,000 by Bank One, $20,000,000 by IBM Credit and
$30,000,000 by Chase.
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:
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EXHIBIT 10.3
1. Amended Definitions. The following definitions in Section 1.1 of the
Credit Agreement are amended to read in their entireties as follows:
""Committed Sum" means, with respect to the Loan Commitment, Thirty
Million Dollars ($30,000,000) with respect to Chase, Thirty Million Dollars
($30,000,000) with respect to Bank One, Twenty-Five Million Dollars
($25,000,000) with respect to Citizens and Twenty Million Dollars
($20,000,000) with respect to IBM Credit."
""Lender" or "Lenders" means, collectively, Chase Bank of Texas, N.A.,
a national banking association, Citizens Bank of Massachusetts, a
Massachusetts stock savings bank, Bank One, NA (Main Office Chicago), a
national banking association, IBM Credit Corporation, a Delaware
corporation, and any assignee lender pursuant to Section 11.4A of this
Credit Agreement. Notwithstanding such collective definition, the phrases
"a Lender," "any of Lenders," "each of Lenders" and similar phrases shall
be singular references and not collective references."
""Loan Commitment" means One Hundred and Five Million Dollars
($105,000,000)."
""Loan Documents" mean this Agreement, the Notes, the Guaranty, all
amendments and other modifications thereto and all other amendments,
agreements, certificates, legal opinions and other documents, instruments
and writings (other than term sheets, commitment letters, or similar
documents used in the negotiations hereof) heretofore or hereafter
delivered in connection herewith or therewith."
2. New Definitions. The following definitions are added to Section 1.1 of
the Credit Agreement, to read in their entireties as follows:
""IBM Credit" means IBM Credit Corporation, a Delaware corporation."
""Ninth Amendment Closing Date" means November 1, 1999, being the
effective date of the Ninth Amendment to Credit Agreement among Borrower,
Guarantor, Subsidiary Guarantors, Lenders and Agent."
""Required Lenders" means, at any time, Lenders having at least sixty
percent (60%) of the aggregate amount of the Committed Sum at such time."
3. Amendment of Section 2.2. The first sentence of Section 2.2 of the
Credit Agreement is amended to read in its entirety as follows:
"The Loan made by Citizens, Bank One and Chase pursuant to this Article II
shall be evidenced by the Notes dated as of the Sixth Amendment Closing
Date and the Loan made by IBM Credit pursuant to this Article II shall be
evidenced by the Note dated as of the Ninth Amendment Closing Date, all
substantially in the form of Exhibit A."
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EXHIBIT 10.3
4. Amendment of Section 3.1. Section 3.1 of the Credit Agreement is
amended to read in its entirety as follows:
"Section 3.1 Commitment to Issue Letters of Credit. Subject to the
terms and conditions of this Agreement, including, without limitation,
Section 3.2, Lenders (acting through any Lender or Lenders (other than IBM
Credit) designated by Borrower from time to time, as issuer) agree to
issue, at such times as Borrower may request from the Closing Date to the
Loan Maturity Date, commercial and standby letters of credit for the
account of any Daisytek Corporation; provided, however, that (a) the
aggregate amount of the Letters of Credit issued by Lenders at any one time
outstanding shall not exceed $2,000,000, and (b) the aggregate amount of
the Letters of Credit, plus the principal amount of the Loan, at any one
time outstanding, shall not exceed the lesser of (x) the Borrowing Base and
(y) the Loan Commitment. IBM Credit shall not have any obligation to issue
a letter of credit; however, IBM Credit shall, subject to the terms and
conditions hereof, participate in all letters of credit issued by the other
Lenders pursuant to this Agreement.
If a Letter of Credit hereunder is issued other than by Chase, then
the issuing Lender shall promptly (and in any event within one Business
Day) notify Agent thereof and include with such notice Borrower's
application for such Letter of Credit, a photocopy of the issued Letter of
Credit and a statement signed by such issuing Lender acknowledging that
such Letter of Credit was issued hereunder. The obligation of Lenders
(acting through any Lender or Lenders (other than IBM Credit) designated by
Borrower from time to time, as issuer) to issue Letters of Credit hereunder
shall expire at Agent's close of business in Dallas, Texas on the Loan
Maturity Date. Each Letter of Credit, as the same may be amended or
extended from time to time, shall expire no later than the Loan Maturity
Date. All Letters of Credit issued hereunder shall be in the issuing
Lender's standard form or in such other form as is mutually agreed upon by
Borrower and Lenders."
5. Amendment of Section 7.2. Section 7.2 of the Credit Agreement is
amended to read in its entirety as follows:
"Section 7.2 Lenders' Representations and Warranties. Lenders hereby
represent and warrant that they will acquire the Notes for their own
account in the ordinary course of their commercial banking business (or, in
the case of IBM Credit, in the ordinary course of its commercial lending
business); however, the disposition of a Lender's property shall at all
times be and remain within its control and in particular and without
limitation, this Section 7.2 does not prohibit a Lender's sale, hereby
authorized, of the Notes or of any participation in the Notes to any bank,
pension plan, investment fund, financial institution or similar purchaser.
Lenders will exercise their best efforts to notify Borrower prior to, and
in any event will notify Borrower promptly after, any such sale. No such
sale shall relieve a Lender of its obligation to make Advances hereunder."
6. Amendment of Section 8.1(d). Section 8.1(d) of the Credit Agreement is
amended to read in its entirety as follows:
"(d) Other Information and Inspections. On and after the Closing Date,
each
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EXHIBIT 10.3
Daisytek Corporation will furnish to Agent, and will cause each of its
Subsidiaries to furnish, (i) any information that any of Lenders may from
time to time reasonably request concerning any covenant, provision or
condition of the Loan Documents or any matter in connection with such
corporation's businesses and operations and (ii) all evidence which any of
Lenders may from time to time reasonably request as to the accuracy and
validity of or compliance with all representations, warranties and
covenants made by such corporation in the Loan Documents, the satisfaction
of all conditions contained therein, and all other matters pertaining
thereto. Upon reasonable prior notice and at reasonable times, each
Daisytek Corporation will permit, and shall cause its Subsidiaries to
permit, representatives appointed by Lenders, including independent
accountants, auditors (including internal auditors), agents, attorneys,
appraisers and any other persons, to visit and inspect any of such Person's
property, including its books of account, other books and records, and any
facilities or other business assets, and to make extra copies therefrom and
photocopies and photographs thereof, and to write down and record any
information such representatives obtain, and such corporation shall permit,
and shall cause its Subsidiaries to permit, Lenders or their
representatives to investigate and verify the accuracy of the information
furnished to Lenders in connection with the Loan Documents and to discuss
all such matters with its officers, employees and representatives;
provided, however, that prior to the occurrence and continuance of an Event
of Default, this sentence shall not be construed as permitting Lenders or
their representatives to contact customers or suppliers of the Daisytek
Corporations in connection with the transactions contemplated by the Loan
Documents, without the consent of Borrower. Each Lender agrees that, except
in connection with its enforcement of its rights under the Loan Documents,
it will take all reasonable steps to keep confidential (in accordance with
the normal practices of commercial banks (or, in the case of IBM Credit, in
accordance with the normal practices of commercial lending)) any
information given to it by a Daisytek Corporation; provided, however, that
this restriction shall not apply to information that (A) has at the time in
question entered the public domain as a result of actions taken by Persons
other than Lenders, (B) is required to be disclosed by Law or by any order,
rule or regulation (whether valid or invalid) of any Tribunal, (iii) is
disclosed to another Lender, or to the Affiliates, auditors, attorneys, or
agents of Lenders, or (iv) is furnished to purchasers or prospective
purchasers of the Notes or of participations or other interests in the
Loans or the Notes who agree to abide by the confidentiality restrictions
of this subsection. Lenders shall use reasonable efforts to minimize the
cost and inconvenience to the Daisytek Corporations associated with
compliance with this Section 8.1(d)."
7. Amendment of Section 9.5. Section 9.5 of the Credit Agreement is
amended to read in its entirety as follows:
"Section 9.5 Notice of Default. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default or Potential
Event of Default hereunder unless Agent has received written notice from a
Lender or Borrower, describing such Event of Default or Potential Event of
Default and stating that such notice is a "notice of default." If Agent
receives such a notice, Agent shall give notice thereof to all Lenders.
Agent shall take such action with respect to such Event of Default or
Potential Event of Default as shall be reasonably directed by the Required
Lenders; provided, however, that unless and until Agent shall have received
such
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EXHIBIT 10.3
directions, Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Potential Event of Default as it shall deem advisable in the best interests
of all Lenders. Notwithstanding anything in this Section 9.5 or elsewhere
in this Agreement to the contrary, upon the occurrence of an event or
circumstance contemplated by Sections 10.1(a), (h), (i) or (j), then Agent
may, and at the request of the Required Lenders shall, take such action
(including, without limitation, the exercise of the remedies set forth in
Section 10.2) or refrain from taking such action as it shall deem advisable
in its sole discretion in the best interests of all Lenders."
8. Amendment of Section 9.14. Section 9.14 of the Credit Agreement is
amended to read in its entirety as follows:
"Section 9.14 Representation of Lenders. Each Lender severally
represents that it will be taking the Note issued to it hereunder for its
own account to evidence loans made in the ordinary course of its commercial
banking business (or, in the case of IBM Credit, in the ordinary course of
its commercial lending business), and not with a view to the distribution
of such Note; provided, however, that the assets of each Lender shall
always remain within the control of such Lender."
9. Amendment of Section 9.17. Section 9.17 of the Credit Agreement is
amended to read in its entirety as follows:
"Section 9.17 Priority of Liens. Notwithstanding anything contained
herein to the contrary or in any other instrument or document executed and
delivered in connection with this Agreement, or otherwise, including,
without limitation, any prior perfection of a Lien under the provisions of
the Uniform Commercial Code or any other Law of any jurisdiction that is
applicable or in which such filing has been or will be made, or any other
recordation or filing of any document, as between Lenders, any security
interest (including any and all purchase money security interests) and Lien
that each of Lenders may acquire in assets of a Daisytek Corporation will
rank equally in priority with the security interest (including any and all
purchase money security interests) and Lien of each other of Lenders in the
same assets, except that Lenders (other than IBM Credit) will not claim a
Lien in any equipment leased by IBM Credit to a Daisytek Corporation."
10. Amendment of Section 9.18. Section 9.18 of the Credit Agreement is
amended to read in its entirety as follows:
"Section 9.18 Required Consent. Notwithstanding Section 11.1, actions
undertaken by Lenders with respect to this Agreement, such as entering into
an amendment or supplement to this Agreement or granting a temporary waiver
from a provision of this Agreement, require the consent of Lenders holding
at least fifty-one percent (51%) of the total Committed Sum; provided,
however, that (a) no modification, supplement or waiver shall, unless by an
instrument signed by all Lenders or by Agent acting with the consent of all
Lenders: (i) increase, or extend the term of any of, the Loan Commitment,
or extend the time or waive any requirements for the reduction or
termination of any of the Loan Commitment, or amend Section 3.1, (ii)
extend the date fixed for the payment of principal
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EXHIBIT 10.3
of or interest on the Loan (or any portion thereof) or any fee hereunder,
(iii) reduce the amount of any such payment of principal, (iv) reduce the
rate at which interest is payable thereon or any fee is payable hereunder,
(v) alter the rights or obligations of Borrower to prepay the Loan (or any
portion thereof), (vi) alter the terms of this Section 9.18, (vii) amend
the definition of Required Lenders or otherwise modify in any other manner
the number or percentage of Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof, (viii) waive
any of the conditions precedent set forth in Section 6.2., or (ix) release
Guarantor or any Subsidiary Guarantor from its Guaranty (except that Agent
is authorized to release the Guaranty of any Subsidiary Guarantor being
sold in a transaction consented to by Lenders holding at least fifty-one
percent (51%) of the total Committed Sum), and (b) any modification or
supplement of this Article IX shall require Agent's prior written consent.
The immediately foregoing sentence is subject to (a) Agent's powers and
rights specifically delegated or granted to it in this Agreement (and such
powers as are reasonably incidental thereto) and (b) Section 9.5 (in
respect of a Potential Event of Default or an Event of Default)."
11. Amendment of Section 10.2(a). Section 10.2(a) of the Credit Agreement
is amended to read in its entirety as follows:
"(a) Upon the occurrence of an event or circumstance contemplated by
Sections 10.1(h), (i) or (j), unless a written waiver has been given by the
Required Lenders, Lenders simultaneously and automatically (without notice,
lapse of time or intervention of any action on the part of Lenders) shall
be deemed at such time to have accelerated the payment of the Obligations
as provided for in subsection (b)(i) below of this Section 10.2 and to have
terminated the Loan Commitment as provided for in paragraph (b)(ii) below
of this Section 10.2, and Agent may, and at the request of the Required
Lenders shall, exercise all other remedies provided for in Section
10.2(b)."
12. Amendment of Section 10.2(b). The first paragraph of Section 10.2(b)
of the Credit Agreement is amended to read in its entirety as follows:
"(b) If an Event of Default exists because any other event or
circumstance shall have occurred (and, in any case in which notice or grace
period is provided with respect thereto under Section 10.1, such grace
period shall have expired and all required notices shall be given so that
an Event of Default exists), then Agent may, and at the request of the
Required Lenders shall, do any one or more of the following:"
13. Amendment of Section 11.3. Lenders' addresses as set forth in Section
11.3 of the Credit Agreement are amended to read in their entirety as follows:
"Chase Bank of Texas, N.A.
0000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxx
Telecopy: 000-000-0000
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EXHIBIT 10.3
Citizens Bank of Massachusetts
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx St. Xxxx
Telecopy: 000-000-0000
Bank One, NA (Main Office Chicago)
0000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: 000-000-0000
IBM Credit Corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx, 00000
Attention: Region Manager West
Telecopy: 000-000-0000
As to any Lender who becomes such pursuant to Section 11.4A, to such
Lender at is address given to Agent."
In addition, all references to "The First National Bank of Chicago"
are hereby amended to be references to "Bank One, NA (Main Office Chicago)," all
references to "First Chicago" are hereby amended to be references to "Bank One,"
all references to "State Street Bank and Trust Company" are hereby amended to be
references to "Citizens Bank of Massachusetts" and all references to "State
Street" are hereby amended to be references to "Citizens."
14. Amendment of Exhibit. Exhibit F to the Credit Agreement is amended in
its entirety to be in the form of Exhibit F attached to this Amendment.
15. New Exhibit H. There is hereby added a new Exhibit H to the Credit
Agreement, to provide in its entirety as provided in the Exhibit H attached to
this Amendment.
16. Release of Certain Subsidiary Guarantors; Initial Public Offering of
PFSweb, Inc. Upon the effective date of the initial public offering (the "IPO")
of shares of common stock of PFSweb, Inc. ("PFSweb") described in the
Registration Statement on Form S-1 (as amended from time to time, the
"Registration Statement") filed by PFSweb with the Securities and Exchange
Commission, each of the following Subsidiary Guarantors shall be released from
its obligations under all Guaranties executed by it: PFSweb, Priority
Fulfillment Services, Inc., Priority Fulfillment Services of Canada, Inc.,
Priority Fulfillment Services Europe B.V. and Working Capital of America, Inc.
(collectively, the "Released Daisytek Corporations"); provided, that it is a
condition subsequent to the effectiveness of such release that the IPO closes
(and if the IPO does not close then such release is not effective) and that
Borrower receives from PFSweb cash in the amount of the lesser of (x) the
outstanding inter-company payables then owing to Borrower by the Released
Daisytek Corporations or (y) $18,000,000. In addition, as of such
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EXHIBIT 10.3
effective date, and provided the IPO closes and Borrower receives the aforesaid
cash amount upon the closing of the IPO, the following provisions shall apply:
(1) The Released Daisytek Corporations shall not be (i)
"Consolidated" with any Daisytek Corporation (including for purposes of Section
8.2(d) and (e)) (except for the purposes of Section 8.1(b)(i) and (ii), for
which they shall be Consolidated), (ii) deemed "Daisytek Corporations" (except
for the purposes of Section 8.2 (k)), (iii) deemed "Subsidiaries" and (iv) not
be deemed "Subsidiary Guarantors" or "Subsidiary Non-Guarantors."
(2) The Borrower will not (i) loan or make advances to, or
investments in, any of the Released Daisytek Corporations, (ii) create, assume
or permit to exist any Lien upon any of the shares of common stock of PFSweb or
(iii) sell, transfer, assign or otherwise dispose of any of the shares of common
stock of PFSweb owned by it (other than pursuant to a sale or distribution to
the public).
(3) The provisions of Section 8.1(o) of the Credit Agreement shall be
waived to the extent that such section requires the delivery of a stock pledge
of any Released Daisytek Corporation.
(4) No Released Daisytek Corporation shall be entitled to receive any
proceeds, either directly or indirectly, of the Credit Agreement.
(5) All financial statements delivered by a Daisytek Corporation
pursuant to the terms of the Credit Agreement shall be accompanied by a
completed Compliance Certificate, the form of which is attached to this
Amendment as Exhibit H.
17. 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 Ninth Amendment Closing Date, 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 May 22, 1995, 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 Ninth Amendment Closing Date, 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 Ninth Amendment Closing Date;
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EXHIBIT 10.3
(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) Note. The Note, duly executed, in favor of IBM Credit;
(e) Opinion of Counsel. An executed opinion of Xxxxx & Xxxxxx, P.C.,
Roseland, New Jersey, counsel to the Daisytek Corporations, dated as of the
Ninth Amendment Closing Date and in form and substance satisfactory to
Lenders and their counsel; and
(f) Other Documents. Any and all other documents or certificates
reasonably requested by a Lender in connection with the execution of this
Amendment, including the Guaranty.
18. Guaranties. Each of Guarantor and each Subsidiary Guarantor hereby
acknowledges, consents and agrees to this Amendment and (a) acknowledges that
its obligations under that certain Guaranty executed by it, in favor of a Lender
(or Agent for the benefit of Lenders) as the case may be, includes a guaranty of
all of the obligations, indebtedness and liabilities of Borrower under the
Credit Agreement as amended by this Amendment (specifically including, without
limitation, the obligations, indebtedness and liabilities resulting from the
increase in the maximum principal amount of the revolving credit facility
established by the Credit Agreement from $85,000,000 to $105,000,000), (b)
represents to each Lender that such Guaranty remains in full force and effect
and shall continue to be its legal, valid and binding obligation, enforceable
against it in accordance with its terms, and (c) agrees that this Amendment and
all documents executed in connection herewith do not operate to reduce or
discharge its obligations under such Guaranty.
19. 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 to be in form and substance reasonably
satisfactory to Agent.
20. Terms of Agreement. Except as expressly amended by this Amendment, the
Credit Agreement is and shall be unchanged.
21. 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.
22. Assignment. Each of Chase, Citizens and Bank One (each, the
"Assignor") hereby sells and assigns to IBM Credit, and IBM Credit hereby
purchases and assumes, the percentage interest set forth on Schedule I in and to
all of the Assignor's rights and obligations under the Credit Agreement
(including, without limitation, such percentage interest in such Lender's Loan
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EXHIBIT 10.3
Commitment, outstanding Letters of Credit and the Loans owing to such Lender).
As of the Ninth Amendment Closing Date, amounts outstanding under the Loan and
the Letters of Credit shall, as to each Lender, be held Pro Rata (as Pro Rata is
modified by the amendment, in this Amendment, of the term "Committed Sum.").
23. 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.
24. 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.
25. 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.
26. 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
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EXHIBIT 10.3
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.
27. 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.
28. 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.
29. 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 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.
30. 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
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 11
12
EXHIBIT 10.3
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.
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 12
13
EXHIBIT 10.3
THIS AMENDMENT is executed and effective as of the date first written
above.
BORROWER:
DAISYTEK, INCORPORATED
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
GUARANTOR:
DAISYTEK INTERNATIONAL
CORPORATION
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
SUBSIDIARY GUARANTORS:
DAISYTEK ASIA PTY LTD, a Singapore
corporation
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
DAISYTEK AUSTRALIA PTY. LTD.
(ACN 075 675 795), an Australian corporation
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 13
14
DAISYTEK (CANADA) INC., a Canadian corporation
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
DAISYTEK DE MEXICO, S.A. DE C.V.,
a Mexican corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
DAISYTEK DE MEXICO SERVICES, S.A. DE C.V.,
a Mexican corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
DAISYTEK LATIN AMERICA, INC., a Florida
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
HOME TECH DEPOT, INC., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 14
15
PRIORITY FULFILLMENT SERVICES DE
MEXICO, S.A. DE C.V., a Mexican corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PRIORITY FULFILLMENT SERVICES, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PRIORITY FULFILLMENT SERVICES OF
AUSTRALIA PTY. LIMITED, (ACN 077 906 462),
an Australian corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PRIORITY FULFILLMENT SERVICES OF
CANADA, INC., a Canadian corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
STEADI-SYSTEMS, LTD.,
a California corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 15
16
STEADI SYSTEMS MIAMI, INC.,
a Florida corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
STEADI SYSTEMS NEW YORK, INC.,
a New York corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
STEADI SYSTEMS CANADA, INC.,
a Canadian corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
STEADI SYSTEMS DE MEXICO, S.A. DE C.V.,
a Mexican corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SUPPLIES EXPRESS, INC., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 16
17
WORKING CAPITAL OF AMERICA, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE TAPE COMPANY, INC., an Illinois
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE TAPE COMPANY, INC., a Georgia
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE TAPE COMPANY, INC., a Pennsylvania
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 17
18
THE TAPE COMPANY, INC., an Ohio
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE TAPE COMPANY, INC., a Minnesota
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
TAPE DISTRIBUTORS OF TEXAS, INC.,
a Texas corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BUSINESS SUPPLIES DISTRIBUTORS, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 18
19
PFSWEB, INC., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BSD DISTRIBUTORS, (CANADA) INC., a
Canadian corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BUSINESS SUPPLIES DISTRIBUTOR
EUROPE B.V., a Dutch corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 19
20
AGENT:
CHASE BANK OF TEXAS, N.A.,
a national banking association
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
LENDERS:
CHASE BANK OF TEXAS, N.A.
a national banking association
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CITIZENS BANK OF
MASSACHUSETTS, a Massachusetts stock
savings bank
By:
--------------------------------
Xxxxxxx St. Xxxx,
Vice President
BANK ONE, NA (Main Office Chicago),
a national banking association
By:
--------------------------------
Xxxxx Xxxxxx, Authorized Agent
IBM CREDIT CORPORATION, a
Delaware corporation
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
NINTH AMENDMENT TO CREDIT AGREEMENT - Page 20
