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EXHIBIT 10.28
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of March 29, 1999 and effective as of March 30, 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
formerly named Texas Commerce Bank National 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, and that certain Fifth Amendment to Credit
Agreement dated as of February 13, 1998 (as so amended, the "Credit Agreement"),
establishing a revolving credit facility in the aggregate maximum principal
amount of $65,000,000;
WHEREAS, the parties desire to increase the maximum principal amount of
the revolving credit facility from $65,000,000 to $85,000,000, to add certain
inventory amounts to the Borrowing Base, to provide for the release foreign
Subsidiary Guarantors from their Guaranty obligations, and to provide for the
pledge of the capital stock of such foreign Subsidiary Guarantors; and
WHEREAS, Chase will serve as administrative agent, syndication agent
and arranger under the Credit Agreement and First Chicago will serve as
documentation agent under the Credit Agreement.
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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1. Amended Definitions. The following definitions in Section 1.1 of the
Credit Agreement are amended to read in their entireties as follows:
""Borrowing Base" means a sum equal to (a) eighty percent
(80%) of the amount of Net Outstanding Consolidated Eligible
Receivables plus (b) an amount, not to exceed clause (a) above, equal
to fifty percent (50%) of the amount of Consolidated Eligible
Inventory, in each case as determined pursuant to the most recent
Borrowing Base Certificate (in the form of Exhibit F) delivered by
Borrower to Agent pursuant to Section 8.1(b)."
""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 First Chicago, and
Twenty-Five Million Dollars ($25,000,000) with respect to State
Street."
""Consolidated Eligible Inventory" means all Consolidated
owned inventory of Guarantor that strictly complies with all of the
Daisytek Corporations' representations, warranties and covenants
contained in the Loan Documents with respect thereto; provided,
however, that the following shall not be included: (a) work-in-process,
(b) damaged, returned, or obsolete inventory, (c) inventory that for
any other reason is not readily saleable in the ordinary course of
business, (d) inventory subject to consignment (or other ownership
interest in favor of a Person other than a Daisytek Corporation), (e)
inventory located other than at a regular place of business of a
Daisytek Corporation, and (f) inventory located outside of the United
States of America or Canada."
""Loan Commitment" means Eighty-Five Million Dollars
($85,000,000)."
2. New Definition. The following definition is added to Section 1.1 of
the Credit Agreement, to read in their entireties as follows:
""Sixth Amendment Closing Date" means March 30, 1999, being
the effective date of the Sixth Amendment to Credit Agreement among
Borrower, Guarantor, Subsidiary Guarantors, Lenders and Agent."
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 Lenders pursuant to this Article II shall be
evidenced by the Notes dated as of the Sixth Amendment Closing Date and
substantially in the form of Exhibit A."
4. Amendment of Section 8.1(n). Section 8.1(n) of the Credit Agreement
is amended to read in it entirety as follows:
"(n) Additional Subsidiary Guarantors. Each Daisytek
Corporation will take such action, and will cause each of its
Subsidiaries to take such action, from time to time as shall be
necessary to ensure that all Subsidiaries of Guarantor become
"Subsidiary Guarantors" hereunder (but excluding from such requirement
any Subsidiary that would, as a result of
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becoming a "Subsidiary Guarantor" hereunder, also become a controlled
foreign corporation as defined in Subpart F of the Internal Revenue
Code of 1986, as amended). Any Subsidiary so excluded is hereinafter
sometimes referred to as a "Subsidiary Non-Guarantor." Without limiting
the generality of the foregoing, if a Daisytek Corporation shall form
or acquire any new Subsidiary (other than a Subsidiary Non-Guarantor),
then as soon thereafter as is reasonable practical, such corporation
will cause such new Subsidiary to (i) become a "Subsidiary Guarantor"
hereunder, and (ii) deliver to Lenders such proof of corporate or other
organizational action, incumbency of officers, opinions of counsel and
other documents as is consistent with those delivered by the then
existing Daisytek Corporations pursuant to Section 6.1, or as Agent
shall request."
5. New Section 8.1(o). A new Section 8.1(o) is added to the Credit
Agreement, to read in its entirety as follows:
"(o) Subsidiary Stock Pledges. Each Daisytek Corporation will
take such action, and will cause each of its Subsidiaries to take such
action, from time to time as shall be necessary to ensure that all
stockholders (or other equity holders) of each Subsidiary Non-Guarantor
execute and deliver to Agent a stock pledge agreement, or similar
agreement (in either case in form and substance reasonably satisfactory
to Agent), and to take such other actions and execute such other
related documents, as is necessary to cause the legal, valid and
binding pledge to Agent, for the benefit of Lenders, of sixty-five
percent (65%) of the capital stock (or other similar equity interest)
of such Subsidiary Non-Guarantor, to secure the Obligations."
6. Amendment of Exhibits. Exhibits A and F to the Credit Agreement are
amended in their entirety to be in the forms of Exhibit A and F, respectively,
attached to this Amendment.
7. Release of Foreign Subsidiary Guarantors. Upon the satisfaction by
Guarantor and Borrower of all their obligations set forth in Section 8 below
(and upon such satisfaction, with effect from May 22, 1995), each of the
following Subsidiary Guarantors shall be released from its obligations under its
Guaranties: Daisytek de Mexico Services, S.A. de C.V., Daisytek (Canada) Inc.,
Daisytek Australia Pty. Limited (ACN 075 675 795), Priority Fulfillment Services
of Canada, Inc., Daisytek de Mexico, S.A. de C.V., Priority Fulfillment Services
of Australia Pty. Limited (ACN 077 906 462), Daisytek Asia Pte. Ltd, and
Priority Fulfillment Services de Mexico, S.A. de C.V. (collectively, the
"Foreign Daisytek Corporations"). Also upon such satisfaction, each Foreign
Daisytek Corporation shall not be a "Subsidiary Guarantor," as defined, but
shall remain a "Daisytek Corporation," as defined.
8. Stock Pledge Agreement. Guarantor and Borrower agree to cause
Borrower and each other Daisytek Corporation of which a Foreign Daisytek
Corporation is a direct Subsidiary to execute and deliver to Agent a stock
pledge agreement, or similar agreement (in either in case form and substance
reasonably satisfactory to Agent), and to take such other actions and execute
such other related documents, as is necessary to cause the legal, valid and
binding pledge to Agent, for the benefit of Lenders, of sixty-five percent (65%)
of the capital stock (or other similar equity interest) of such Foreign Daisytek
Corporation, to secure the Obligations. Guarantor and Borrower further covenant
and agree to cause such capital stock pledges to be effected as soon as
commercially feasible.
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9. Conditions to Effectiveness. The effectiveness of this Amendment is
conditioned upon the prior receipt by Agent of the documentation and fee set
forth below:
(a) Certificates. A certificate of the Secretary of each
Daisytek Corporation, dated as of the Sixth 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 Sixth 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 Sixth Amendment Closing Date;
(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) Notes. The Notes, duly executed;
(e) Opinion of Counsel. An executed opinion of Xxxxx & Xxxxxx,
P.C., Roseland, New Jersey, counsel to the Daisytek Corporations, dated
as of the Sixth Amendment Closing Date and in form and substance
satisfactory to Lenders and their counsel;
(f) Other Documents. Any and all other documents or
certificates reasonably requested by a Lender in connection with the
execution of this Amendment; and
(g) Fee. The fee referred to in Borrower's letter to the
Lenders of even date herewith.
10. 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, 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 $65,000,000
to $85,000,000, and specifically
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acknowledging the prospective release of the Foreign Daisytek Corporations from
their obligations under their Guaranties), (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.
11. 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.
12. Terms of Agreement. Except as expressly amended by this Amendment,
the Credit Agreement is and shall be unchanged.
13. 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.
Lenders agree to undertake reasonable efforts among themselves such
that, as of the Sixth Amendment Closing Date, amounts outstanding under the Loan
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.").
14. 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.
15. 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.
16. 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,
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AS AMENDED BY THIS AMENDMENT, THE NOTES, OR ANY ADVANCE OR LOAN EVIDENCED BY THE
NOTES.
17. 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.
18. 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.
19. 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.
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20. 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.
21. 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.
[The balance of this page is intentionally left blank.]
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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 (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.,
DAISYTEK AUSTRALIA PTY. LTD. a Mexican corporation
(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:
----------------------------
SIXTH AMENDMENT TO CREDIT AGREEMENT - Page 8
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DAISYTEK LATIN AMERICA, INC., a PRIORITY FULFILLMENT SERVICES
Florida corporation OF CANADA, INC., a Canadian
corporation
By:
------------------------------- By:
Name: -------------------------------
----------------------------- Name:
Title: -----------------------------
---------------------------- Title:
----------------------------
HOME TECH DEPOT, INC., a Delaware
corporation STEADI-SYSTEMS, LTD.,
a California corporation
By:
-------------------------------
Name: By:
----------------------------- -------------------------------
Title: Name:
---------------------------- -----------------------------
Title:
----------------------------
PRIORITY FULFILLMENT SERVICES
DE MEXICO, S.A. DE C.V., a Mexican
corporation STEADI SYSTEMS MIAMI, INC.,
a Florida corporation
By:
-------------------------------
Name: By:
----------------------------- -------------------------------
Title: Name:
---------------------------- -----------------------------
Title:
----------------------------
PRIORITY FULFILLMENT SERVICES,
INC., a Delaware corporation STEADI SYSTEMS NEW YORK, INC.,
a New York corporation
By:
-------------------------------
Name: By:
----------------------------- -------------------------------
Title: Name:
---------------------------- -----------------------------
Title:
----------------------------
PRIORITY FULFILLMENT SERVICES
OF AUSTRALIA PTY. LIMITED, (ACN
077 906 462), an Australian SUPPLIES EXPRESS, INC., a Delaware
corporation corporation
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
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WORKING CAPITAL OF AMERICA, THE TAPE COMPANY, INC., an Ohio
INC., a Delaware corporation corporation
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
THE TAPE COMPANY, INC., an Illinois THE TAPE COMPANY, INC., a
corporation Minnesota corporation
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
THE TAPE COMPANY, INC., a Georgia TAPE DISTRIBUTORS OF TEXAS,
corporation INC., a Texas corporation
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
THE TAPE COMPANY, INC., a
Pennsylvania corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
AGENT:
CHASE BANK OF TEXAS, N.A.,
a national banking association
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SIXTH AMENDMENT TO CREDIT AGREEMENT - Page 10
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LENDERS:
CHASE BANK OF TEXAS, N.A.
a national banking association
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust
By:
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Xxxxxxx St. Xxxx,
Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, a national banking
association
By:
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Xxxx X. Xxxxx,
Authorized Agent
SIXTH AMENDMENT TO CREDIT AGREEMENT - Page 11
