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EXHIBIT 10.9
[BANK ONE LETTERHEAD]
AGREEMENT made the 18th day of December 2000.
BETWEEN: BANK ONE, NA (ARBN 064 474 102) of Xxxxx 00, 00 Xxxxxxxx Xxxxxx, Xxxxxx
XXX (the `Bank')
AND: DAISYTEK AUSTRALIA PTY LTD (ACN 075 675 795) (the `Borrower')
WHEREBY IT IS AGREED as follows:
A. The Borrower has requested that the Bank provide or continue to provide
certain financial accommodation to the Borrower.
B. The Bank desires to provide or to continue to provide such financial
accommodation to the Borrower upon and subject to the terms and conditions
of this Agreement.
C. The obligations of the Borrower under this Agreement (`Guaranteed Amount')
are unconditionally guaranteed by the DAISYTEK, INC and DAISYTEK
INTERNATIONAL CORPORATION (the `Guarantor').
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement unless the context otherwise requires:
"ACCOMMODATION LIMIT" means $15,000,000 or such other amount
(Australian Fifteen Million Dollars) which both parties may agree upon
in writing from time to time.
"ADVANCE" means any cash advance drawn under this Facility.
"THIS AGREEMENT" means this Agreement and any other agreement
expressed to be supplemental to this Agreement to which the parties to
this Agreement are parties and any amendments to any such document.
"APPROVED PURPOSES" means the working capital needs, acquisitions and
other general corporate purposes of the Borrower.
"AUTHORISED OFFICER" means:
(a) in relation to the Borrower, all persons designated by the
Borrower as an Authorised Officer from time to time, and notified
in writing by the Borrower to the Bank and;
(b) in relation to the Bank, persons designated by the Bank as
Authorised Officers;
"BANK" means its successors and permitted assigns.
"BBSY" means in respect of any day and in respect of any Interest
Period the rate per centum per annum quoted on the page numbered
`BBSY' of the Reuters Monitor System under the heading `Average Bid
Rate' for such Interest Period at or about 10.00am (Sydney time) on
such day or on the first day if such Interest Period (rounded up if
necessary, to the nearest four decimal places) PROVIDED THAT if in
respect of any Interest Period BBSY cannot be determined in accordance
with the foregoing procedures then BBSY for that Interest Period shall
mean such rate as is agreed between the Bank and the Borrower having
regard to comparable indices then available and in the absence of any
such agreement shall be the rate stipulated by the Bank having regard
to such comparable indices.
"XXXX" has the same meaning as in the Bills of Exchange Act 1909 (but
does not include a cheque).
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"THE BORROWER" includes it successors and permitted assigns.
"BUSINESS DAY" means a day on which Australian trading banks are open
for a full range of banking business in the metropolitan area of
Adelaide, South Australia, Melbourne, Victoria and Sydney, New South
Wales.
"DRAWDOWN" means an Advance made by the Bank to the Borrower pursuant
to this Agreement.
"DRAWDOWN DATE" means a date upon which an Advance is made by the Bank
to the Borrower pursuant to this Agreement.
"DRAWDOWN NOTICE" means a notice of intention of the Borrower to
borrow or redraw hereunder in the form or the effect of the form in
Schedule I, signed by an Authorised Officer of the Borrower and
received no later than 2.00pm (Eastern Standard Time) one (1) Business
Day before the proposed date of such borrowing, redrawing by the Bank.
"EVENT OF DEFAULT" means any of the events designated as such in this
Agreement.
"FACILITY" means the commitment to provide Advances under this
Agreement.
"FINANCIAL YEAR" means the period from 1 July to the next following 30
June or such other period of one (1) year as the parties may agree in
writing from time to time.
"FIXED RATE LOAN" means a Cash Advance made under the Facility for a
term or more than 180 days with an interest rate fixed for the whole
of the term of such advance.
"GUARANTEED AMOUNT" means the aggregate of the Accommodation Limit and
the Overdraft Limit specified in Schedule VII and any other agreed
amount.
"GUARANTOR" means its successors and permitted assigns.
"INTEREST PERIOD" means each period of each Advance being a period of
not less than 1 day nor more than 180 days or such other period as the
Bank and the Borrower may agree provided that such period shall not
extend beyond the Repayment Date.
"LOANS" means the aggregate of all Principal Moneys which are from
time to time owing (including contingently owing) or unpaid to the
Bank and all other monies from time to time owing (including
contingently owing) and unpaid to the Bank under this Agreement.
"PRINCIPAL MONEYS" means the aggregate of the Advances outstanding.
"QUARTER" means each quarter period ending on the last days of March,
June, September and December in each year.
"REFERENCE BANKS" means such banks as may from time to time be
determined by the Bank to be "Reference Banks".
"REPAYMENT DATE" means with respect to Advances the Termination Date.
"SECURITY INTEREST" means any security or preferential interest or
arrangement of any kind in any asset or other right of or arrangement
of any kind with any creditor to have its claim satisfied before other
creditors with or from the proceeds of any asset, any deposit of money
by way of security and any retention of title other than in the
ordinary course of day to day trading conducted at arms length not
including a charge or lien arising in favor of a governmental agency
by operation or statute unless there is a default in payment of money
secured by that charge or lien.
"SUBSIDIARY" means
(a) a subsidiary as defined in the Corporations Law; or
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(b) in respect of a person any entity of which that person owns or
controls, or is in a position to own or control whether directly
or indirectly, more than fifty per cent (50%) of the capital or
voting rights; and includes any subsidiary formed or acquired
after the date of this Agreement.
"TERMINATION DATE" means January 1, 2002.
1.2 CONSTRUCTION
In this Agreement unless the context otherwise requires:
(a) A reference to any Act of Parliament or to any section or
provision thereof shall be read as if the words "or any statutory
modification or re-enactment thereof or any statutory provision
substituted therefore" were added to such reference.
(b) A reference to winding up shall when applied to individuals be
deemed to refer to bankruptcy.
(c) A reference to an accounting term or "Australian Accounting
Standards" is to be interpreted in accordance with approved
accounting standards and practices under the Corporations Law,
and, where not inconsistent with those accounting standards and
practices generally accepted principles and practices in
Australia consistently applied to a body corporate or as between
bodies corporate and over time. A reference to "consolidated" in
relation to accounts or other financial information, data or
statistics with respect to a person means treated for accounting
purposes as if accounting standards and generally accepted
accounting principles for the creation of consolidated accounts
applicable to a holding company and its subsidiaries applied to
the person.
(d) References to sub-clauses, clauses and schedules are references
to sub-clauses, clauses and schedules of this Agreement.
(e) References to any agreement, license or other instrument shall be
deemed to include references to such agreement, license or other
instrument as varied or replaced from time to time.
(f) Words importing any gender shall include all other genders; words
importing individuals shall include partnerships and corporations
and vice versa; words importing the singular number shall include
the plural and vice versa; the index (if any) any headings are
for convenience and shall not affect the interpretation of this
Agreement.
(g) Where under or pursuant to this Agreement or anything done under
this Agreement the day on or by which any act, matter or thing is
to be done is not a Business Day such act, matter or thing may be
done on the next succeeding day which is a Business Day (except
with respect to the payment of monies payable under this
Agreement which shall be made on the immediately preceding day
which is a Business Day).
2. THE FACILITY
2.1 The Bank agrees to furnish to the Borrower upon and subject to the
terms and conditions of this Agreement Advances up to the
Accommodation Limit in aggregate.
2.2 The Facility may be made available in Australian currency .
2.3 The Borrower may request that any part of the Facility be made
available either in Australian currency or in a currency other than
Australian currency.
In the event that the Borrower shall request that any part of the
Facility be made available in a currency other than Australian
currency then the Bank shall not be required to so make that part of
the Facility available in a currency other than Australian currency
if:
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2.3.1 the aggregate amount borrowed in Australian currency and the
then Australian dollar countervalue of any currency other than
Australian currency (calculated as provided in Clause 2.7)
borrowed or to be borrowed shall be greater than the
Accommodation Limit; or
2.3.2 the Bank is not satisfied with any designated period of
borrowing or risk exposure; or
2.3.3 for any reason whatsoever it is impractical for the Bank to make
available any accommodation under the Facility in a currency
other than Australian currency;
2.4 Where any accommodation under the Facility is denominated in a
currency other than Australian currency, repayment or payment in
respect of such accommodation and payments of interest thereon and
fees in respect thereof shall be made by the Borrower in the currency
of such accommodation.
2.5 The Borrower agrees that currency fluctuations are to the account of
the Borrower and that the Borrower bears the risk for the same.
2.6 All sums falling due hereunder by way of interest or fees on a per
annum percentage basis shall be calculated on the basis of a 365 day
year for Advances or fees payable in Australian currency and a 360 day
year for all other currencies for the actual number of days elapsed.
2.7 The Australian dollar countervalue of any amount of any currency other
than Australian currency to be determined for any purpose shall, as
between the Bank and the Borrower, be calculated at the Bank's spot
selling rate of exchange in respect of the same on the day any such
calculation is required to be made at the particular time of the day
determined by the Bank. A certificate signed by the Bank stating any
such rate of exchange shall be conclusive evidence of such rate of
exchange.
2.8 Subject to any specific provision to the contrary and to Clause 2.9,
where the Borrower comprises two or more persons they are bound
jointly, each of them severally and any two or more of them jointly
and severally.
2.9 The only party liable as a principal debtor under this Agreement in
relation to any Advances is the party that draws the Advance.
3. ACCOMMODATION LIMIT
3.1 At any one time the aggregate amount of Advances outstanding shall not
exceed the Accommodation Limit.
3.2 The Bank shall not be obliged to make any Advance to the Borrower if
to so do would result in a breach of Clause 3.1.
3.3 The Bank may act upon the oral instruction of any of the following
persons in the position of: Chief Financial Officer, Treasurer,
Controller, Director of Cash Management of the Guarantor or Financial
Controller of the Borrower.
4. PURPOSE OF THE FACILITY
Utilisation of this Facility by the Borrower under this Agreement shall be
used solely for the Approved Purposes and no other purpose except with the
prior written approval of the Bank to do otherwise. The Bank shall not have
any responsibility to ensure that it is so utilised.
5. ADVANCES
5.1 Each Advance shall be repayable at the stated maturity date
established by the Bank (from an overnight basis to a period not to
exceed 180 days nor the Repayment Date) at or about the time of
Advance or, if no such stated maturity is established, upon demand.
All Advances must be repaid by the Repayment Date.
5.2 Interest for each Advance shall be calculated to be a margin as
determined by the Pricing Grid in Appendix A plus BBSY as agreed to
between the Bank and the Borrower.
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5.3 Interest shall be calculated daily and be paid monthly in arrears,
save that the last interest payment shall be made on the Repayment
Date.
5.4 The Borrower may repay an Advance in whole (but not in part) before
the maturity date if, but only if:
5.4.1 The Borrower gives the Bank at least 5 business days irrevocable
notice in writing of the Borrower's intention to repay;
5.4.2 The Borrower makes payment to the Bank of all moneys payable
pursuant to subparagraph 5.5;
5.4.3 The Borrower makes payment on the day of payment specified in
the notice.
5.5 In the event that the Borrower wishes to make early repayment of an
Advance or if for any reason early repayment of an Advance is demanded
by the Bank as a result of an Event of Default, the Borrower shall pay
to the Bank in addition to all other moneys then payable an amount
sufficient to compensate and to indemnify the Bank for and against all
losses (including loss of profits), costs, damages and expenses which
the Bank determines that the Bank will or is likely to suffer or incur
as a result of such early repayment. The Borrower acknowledges that
the Bank may endeavour to arrange or enter into an interest rate swap
agreement or other commitment and may as a consequence of this
(whether directly or indirectly) suffer or incur losses, costs,
damages or expenses in the event that all or part of the relevant
advance is repaid prior to the due date of payment.
5.6 All notices of drawdown (whether verbal or written) shall be
irrevocable. The obligations of the Borrower shall be absolute and
unconditional and shall not be subject to any reduction, termination,
or other impairment by any set-off, deduction, counterclaim,
agreement, defence, suspension, deferment, or otherwise, and the
Borrower shall not be released from any obligations under the
Facility, nor shall such obligations be prejudiced or affected for any
reason including without limitation:
5.6.1 by any falsity, inaccuracy, insufficiency or forgery which on
its face purports to be signed or authorised pursuant to a
Notice of Drawdown;
5.6.2 by any failure by the Bank to inquire whether any cable, fax or
telex has been inaccurately transmitted or received, or has been
sent by an unauthorised person.
5.7 Any Advance may, at the discretion of the Bank, be made by a nominated
subsidiary of the Bank. In such event the Bank shall be agent of the
nominated subsidiary in all matters dealing with payment and recovery.
5.8 Whenever the Borrower intends to borrow or redraw any of Advance
amount under the Facility, it shall give the Bank a Drawdown Notice of
such intent no later than 2.00pm (Eastern Standard Time) one (1)
business day before the proposed date of such borrowing or redrawing.
A Drawdown Notice for an Advance shall be in the form or the effect of
the form in Schedule I. The Bank's acceptance of such Drawdown notice
is subject to Clause 3.
6. LETTERS OF CREDIT - SECTION DELIBERATELY LEFT BLANK
7. SBLC - SECTION DELIBERATELY LEFT BLANK
8. INTEREST
The Borrower shall pay to the Bank interest on all further monies (other
than interest) due and unpaid by the Borrower to the Bank under or pursuant
to this Agreement at the rate of five (5%) per cent above the rate of the
Bank's Overdraft Reference Rate which applies as at the date such monies
become due and payable. All interest which accrues under this sub-clause
during any calendar month shall become due and payable by the Borrower to
the Bank on the last Business Day of that calendar month and if not then
paid shall be compounded and bear interest accordingly.
9. FEES
9.1 Establishment Fee: N/A.
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9.2 Line Fee: The Borrower shall pay to the Bank a line fee as determined
by the Pricing Grid in Appendix A, per annum calculated in respect of
each Quarter on the Accommodation Limit and be payable Quarterly in
arrears. The Line Fee shall accrue from the date of signing this
Agreement.
9.3 Expenses: Whether or not the Borrower shall draw down under this
Agreement the Borrower shall forthwith reimburse the Bank for the
charges and expenses incurred by the Bank.
9.3.1 in contemplation of or in carrying out its duties under this
Agreement;
9.3.2 in connection with the negotiation preparation or execution of
this Agreement or the administration of this Agreement; and
9.3.3 in connection with the enforcement of, or the exercise or
purported or attempted exercise of any right, authority or
remedy conferred on the Bank under or by virtue of this
Agreement;
including in each case the fees and expenses of legal advisers on a
solicitor and own client basis and all stamp duty (including financial
institutions duty and duty passed on to the Bank by any bank or
financial institution) levied on or in connection with this Agreement
or any payment or the receipt of any payment under this Agreement.
9.4 The Borrower shall forthwith pay any and all stamp duty (including any
financial institutions or other receipts duty) registration and
similar taxes or charges imposed by governmental authorities which may
have been paid or may be payable or determined to be payable in
connection with:
9.4.1 the execution, delivery, performance or enforcement of this
Agreement;
9.4.2 on or in respect of any transaction contemplated by this
Agreement;
9.4.3 any other matter or thing done or arising out of or in
connection with this Agreement; or
9.4.4 any transaction related to this Agreement;
and shall indemnify the Bank against any and all liabilities with
respect to or resulting from delay or omission to pay such taxes or
charges including any fines or penalties (save those due to delay or
negligence on the part of the Bank).
9.5 Increase in Costs by Government Action
If any law, regulation or regulatory requirement or judgement, order
or direction of any court, tribunal or authority binding on the Bank
in any jurisdiction taking effect after the date of this Agreement, or
if compliance by the Bank with any direction, request or requirement
(whether or not having the force of law) or any competent governmental
or other authority, shall:
9.5.1 subject the Bank to taxes or change the basis of taxation of the
Bank with respect to any payment under this Agreement; or
9.5.2 impose, modify or deem applicable any reserve or prudential or
capital adequacy requirement or require the making or the
varying of terms of any special deposits against or in respect
of any assets or liabilities (whether contingent or otherwise)
of, deposits with or for the account of, or loans by, the Bank;
or
9.5.3 impose on the Bank any other conditions with respect to this
Agreement or its obligations under this Agreement;
and if, as a result of any of the foregoing:
9.5.4 the cost to the Bank of making or keeping the Facility available
or otherwise performing its obligations under this Agreement or
allocating its capital resources is increased; or
9.5.5 the amount payable or the effective rate of return on its
overall capital to the Bank under this Agreement is reduced; or
9.5.6 the Bank makes a payment or foregoes or suffers a reduction in a
return on or calculated by reference to any amount payable to it
under this Agreement;
then, and in each such case, the Bank shall notify the Borrower and
give the Borrower the option exercisable by notice in writing to the
Bank within ten (10) Business Days of receipt of notice of the Bank
of:
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9.5.7 paying an amount or amounts to the Bank from time to time on
demand to compensate the Bank in full for any cost or reduction
of the kind referred to effective from the date on which the
cost or reduction is actually incurred by the Bank; or
9.5.8 terminating this Agreement on the first to occur of the end of
the then current Interest Period and the Repayment Date by
paying to the Bank the debt owing to it on that date with
accrued interest and all other monies payable under this
Agreement, together with an amount determined by the Bank to
compensate it up to that date for actual cost or reduction of
the type referred to.
If the Borrower fails to make an election the Borrower shall be deemed
to have made the election in sub-clause 5.7 of this Clause. The Bank's
certificate in respect of any cost or reduction of the kind referred
to shall be prima facie evidence of the incurring of any such cost or
reduction, except in the case of manifest error.
9.6 Gross Up
9.6.1 If at any time any applicable law, regulation or regulatory
requirement of any government authority, monetary agency or
central bank requires the Borrower to make any deduction or
withholding in respect of taxes from any payment due under this
Agreement:
(a) the sum due from the Borrower in respect of the payment
shall be increased to the extent necessary to ensure that,
after the making of the deduction or withholding, the Bank
receives a net sum equal to the sum which it would have
received had no such deduction or withholding been required
to be made; and
(b) the Borrower shall indemnify the Bank against any losses or
costs incurred by the Bank by reason of any failure of the
Borrower to make any such deduction or withholding.
The Borrower shall promptly deliver to the Bank any receipts,
certificates or other proof evidencing the amounts (if any) paid
or payable in respect of any such deduction or withholding,
together with any other information which the Bank may
reasonably require.
9.6.2 If the Bank or any person on its behalf is required by any
applicable law regulation or regulatory requirement of any
government authority, monetary agency or central bank to make
any deduction or withholding from, or any payment on or
calculated by reference to, any amount received or receivable
under this Agreement (other than taxes payable on the overall
net income of the Bank) then (without prejudice to sub-clause
6.1) the Borrower shall upon demand indemnify and hold harmless
the Bank against any such deduction, withholding or payment
together with any related cost, loss, expense, interest,
penalties or other liability by payment to each such person of
such amounts and in such currencies as the person concerned may
certify are required to compensate it for any such deduction,
withholding or payment together with any related cost, loss,
expense, interest, penalties or other liability.
9.7 GST Gross Up
In this clause, 9.7, GST means a goods and services or similar tax
imposed in Australia, together with any related interest, penalties,
fines or other charges.
9.7.1 Notwithstanding any other provision of this Agreement:
(a) in the event that GST has application to any supply made under
or in connection with this agreement by a party, that party may,
in addition to any amount or consideration payable under this
Agreement, recover from the Borrower an additional amount on
account of GST, such amount to be calculated by multiplying the
relevant amount or consideration payable by the Borrower for the
relevant supply by the prevailing GST rate; and/or
(b) without limiting the generality of the foregoing, in the event
that a party (other than the Borrower) is not entitled to an
input tax credit in respect of the amount of any GST charged to
or recovered from that party by any person, or payable by that
party, or in respect of any amount which is recovered from that
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party by way of reimbursement of GST referable directly or
indirectly to any supply made under or in connection with this
Agreement, that party shall be entitled to increase any amount
or consideration payable by the Borrower on account of such
input tax and recover from the Borrower the amount of any such
increase.
9.7.2 Any additional amount on account of GST, or on account of an
amount for which a party is not entitled to an input tax credit,
recoverable from the Borrower pursuant to sub-paragraph 9.7.1(a)
or (b) of this clause shall be calculated without any deduction
or set-off of any other amount and is payable by the Borrower
upon demand by the party whether such demand is by means of an
invoice or otherwise.
9.7.3 Each party will use its best endeavors to determine reasonably
the extent (if any) to which any amount payable by the Borrower
to that party for any supply made under this Agreement may be
reduced as a direct consequence of the abolition of or reduction
in any taxes, duties, or statutory charges paid or payable by
that party (as part of the imposition of GST) which directly
relate to the supply by that party, and the amount payable by
the Borrower to that party shall be reduced only to the extent
of the reduction (if any) so determined by the Bank.
9.7.4 Without limiting sub-paragraph 9.7.1(a), if requested by the
Borrower in writing the relevant party will provide an invoice
in relation to any supply to which sub paragraph 9.7.1(a) has
been applied no later than 28 days after the request is made.
10. TERMINATION OF FACILITY
Subject to any agreement in writing to the contrary entered into the Bank
and the Borrower the Facility shall terminate on the Termination Date and
the Borrower shall pay to the Bank the Advances forthwith.
11. CONDITIONS PRECEDENT
11.1 To the Facility
The granting of this Facility is subject to the Bank receiving prior
to any requests of the Borrower, all of the following in the form and
substance satisfactory to the Bank:
11.1.1 There exists no Event of Default
11.1.2 A copy of the Board resolution of the Borrower authorising the
Borrower to enter into this Agreement and appointing authorised
persons to sign all applications notices and documents to be
delivered hereunder and for the operation of the Facility; and
specimen signatures of the authorised persons appointed under
the Board resolution referred to herein.
11.1.3 A copy of this Agreement duly executed by the Borrower.
11.1.4 A Guarantee duly executed by the Guarantors in a form and
substance acceptable to the Bank.
11.1.5 A copy of the Board resolution of the Guarantor authorising the
issuance of the guarantee referred to in sub clause 11.1.5, and
appointing authorised persons to sign all applications notices
and documents to be delivered hereunder; and specimen
signatures of the authorised persons appointed under the Board
resolution referred to herein.
11.2 To a Drawdown
The obligation of the Bank to make any Advance is subject to the
fulfillment (to the reasonable satisfaction of the Bank) of the
following conditions precedent:
11.2.1 The Bank has duly received from the Borrower a request for a
Drawdown in the form of a Drawdown Notice;
11.2.2 All representations give to the Bank herein are true and
correct as at the date of such Advance;
11.2.3 No Event of Default exists.
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11.2.4 The Bank is satisfied that there has been no material or
adverse change in the financial condition of the Borrower.
11.2.5 This Agreement is valid and binding on the Borrower and is
enforceable in accordance with its terms.
11.2.6 The Bank has received the items outlined in sub clause 11.1 and
such other things as it may reasonably require before drawdown.
12. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank as follows:
12.1 The Borrower is a limited liability corporation duly incorporated and
validly existing under the laws of Australia and has the corporate
power to own property and assets and to carry on business as it is now
being conducted.
12.2 This Agreement constitutes a legal valid and immediately binding
obligation on the Borrower and is enforceable in accordance with its
express terms.
12.3 Third Party Rights The execution, delivery and performance of this
Agreement by the Borrower shall not violate in any respect any
provision of:
12.3.1 any law or regulation or any order or decree or any government
authority, agency or court of the Commonwealth of Australia or
of a State or Territory thereof;
12.3.2 the Memorandum or Articles of Association of the Borrower; nor
12.3.3 any mortgage, contract or other undertaking or instrument to
which the Borrower is party or which is binding upon the
Borrower or any of its assets.
12.4 All authorizations, approvals, consents, licenses, filings,
registrations, notarizations and other requirements or any
governmental judicial or public body, authority, bureau or agency in
the Commonwealth of Australia or in a State or Territory thereof now
obtainable and required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement have been
obtained or effected and are in full force and effect and true copies
thereof (where applicable) have been delivered to the Bank and all
fees payable in connection therewith have been paid and there has been
no default in the performance of any of the terms or conditions of any
of the same.
12.5 The Borrower is not in default under any agreement undertaking or
instrument to which it is a party or by which it is bound, such
default being material in the context of this Agreement and no event
has occurred which with the giving of notice or lapse of time or both
would constitute such a default.
12.6 No litigation or governmental proceeding is pending or, to the
knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries which could have a material adverse effect on the
condition, financial or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis
12.7 The Borrower and each of its Subsidiaries have duly filed all taxation
returns required to be filed (none of which are so far as the Borrower
is aware likely to be the subject of any dispute) and have paid all
taxation levied or assessed upon it has complied with all assessments
and notices in respect thereof of have established adequate reserves
for payment thereof.
12.8 The obligations of the Borrower under this Agreement rank at least
equally with all other unsecured and unsubordinated indebtedness of
the Borrower except any liabilities mandatory preferred by law.
12.9 In entering into this Agreement the Borrower is not acting as a
trustee of any trust or settlement.
12.10 The Borrower holds all necessary licenses permits consents approvals
or authorities for its business and property and use of premises and
such are valid in full force and effect in all respects and are in
good standing and all fees due in respect thereof have been paid and
all conditions relating thereto have been duly complied with and no
notice of breach or termination thereof has been given or has been or
is threatened and no circumstances have arisen or are in existence to
the knowledge of the Borrower which would with the
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giving of notice or lapse of time or both entitle any competent
authority to call into question suspend cancel or terminate the same
nor are there any circumstances to indicate that equivalent licenses
permits consents approvals or authorizations would not be granted to
the Borrower upon renewal on no less favorable terms than exist now.
12.11 All risks usually insured against according to sound commercial
practice by persons carrying on activities similar to the Borrower's
are fully insured against in amounts representing the present full
replacement or reinstallation values or market values and in the name
of and for the benefit of the Borrower absolutely.
12.12 The Borrower is not aware of any fact or circumstance which might
reasonably be expected to affect in any material adverse way the
financial position, operations, aspects, profitability, or prospects
of the Borrower or the business of the Borrower or the value of the
property of the Borrower other than those expressly disclosed in
writing to the Bank or affecting as a whole the industry in which the
Borrower participates.
12.13 All information provided by or on behalf of the Borrower whether prior
to or after the date of this Agreement to the Bank is true and correct
and is not, by the omission of information or otherwise, misleading
and all projections contained therein were arrived at after the due
and careful consideration and were based on the best information
available and on fair assumptions.
The representations and warranties in this clause shall be deemed to be
repeated by the Borrower on and as of the date of each Advance or issue of
Letter of Credit or Guarantee (as the case may be) as if made with
reference to the facts and circumstances existing at such date.
The Borrower acknowledges that the Bank relies on the representations and
warranties made or given in this Agreement by the Borrower and that the
Bank is induced by each such representation and warranty to enter into this
Agreement and the rights of the Bank in respect of a breach of any such
representation or warranty shall not be affected by investigation (if any)
made by the Bank into the affairs of the Borrower.
13. GENERAL OBLIGATIONS
The Borrower hereby so far as the following shall apply to the Borrower
agrees that on and from the date of this Agreement and so long as any
amount payable under this Agreement is outstanding:
13.1 The Borrower shall take all action necessary to obtain and promptly
renew from time to time all authorizations, approvals, consents,
licenses and exemptions as may be required under any applicable law or
regulation to enable the Borrower to perform its obligations under
this Agreement or required for the validity or enforceability of this
Agreement or any transaction contemplated by this Agreement.
13.2 The Borrower shall prepare and maintain in accordance with Australian
Accounting Standards proper and adequate books and records reflecting
fully all transactions entered into by the Borrower and all its
Subsidiaries.
13.3 The Borrower shall promptly notify the Bank in writing of the
occurrence or pending or threatened occurrence of any event which may
cause or constitute a breach of any of the representations or
warranties or agreements of the Borrower in this Agreement including
any event which may result in a material change in the business of the
Borrower and any other event which constitutes or which may with the
giving of notice or lapse of time or both or other conditions
constitute an Event of Default.
13.4 The Borrower shall comply with all requirements of the Corporations
Law or of the corresponding legislation of any other place applicable
to the Borrower.
13.5 The Borrower shall permit representatives of the Bank (or any
accountants or other experts designated by it) during normal business
hours and upon reasonable notice to visit and inspect and examine the
books of account records (excluding company minute books), reports and
other papers (and to make copies and to take extracts therefrom) of
the Borrower and to discuss its affairs, finances and accounts with
its officers, accountants and auditors, all at such times and as often
as may be reasonably requested by the Bank but only in so far as such
matters relate to information as may reasonably be required by the
Bank for any purpose connected with this Agreement.
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13.6 Neither the Borrower nor any of its Subsidiaries shall, except as
permitted in this Agreement, without the prior written consent of the
Bank create or assume or permit to exist or arise any Security
Interest whatsoever over any part of its present or future
undertakings, property, assets uncalled capital or revenues. The
Borrower and its Subsidiaries represent and warrant to the Bank that
there is no such Security Interest over any part of their present or
future undertakings, property, assets, uncalled capital or revenues in
existence as at the date of this Agreement.
13.7 The Borrower shall permit the Bank upon written request of the Bank to
from time to time inspect the register of the members of the Borrower
at the Borrower's registered office or other place or places where the
register or any branch register is so kept at any time during regular
business hours and the Borrower shall furnish the Bank with any
information which the Bank may consider reasonably necessary to enable
it to determine whether or not there has been at any time after the
date of this Agreement a transfer of the effective management and
control of the Borrower.
13.8 The Borrower shall furnish to the Bank copies of all such accounts,
documents, reports, notices, circulars, particulars and certificates
which are required to be furnished by the Borrower to any stock
exchange, corporate affairs office (or analogue office) or shareholder
at the same time as they are furnished to that stock exchange,
corporate affairs (or analogous office) or shareholder and when
requested by the Bank copies of such documents, reports, notices,
circulars, particulars or certificates which are required under the
provision of any trust deed to which the Borrower is a party to be
furnished to the trustee thereunder from time to time.
13.9 The Borrower shall comply in all material respects with all applicable
laws, rules, regulations and orders including, without limitation,
paying when due all taxation, assessments and governmental charges
imposed upon it or its assets and all other claims which may become a
lien upon any of its property except to the extent contested in good
faith and by appropriate procedure unless the loss of such contested
proceedings would have a material adverse effect on the ability of the
Borrower to meet its obligations under this Agreement.
13.10 The Borrower shall provide updated signatory lists and specimen
signatures from time to time of persons authorised to sign documents
and operate the Facility.
14. FINANCIAL INFORMATION
The Borrower shall supply the Bank with all financial or other information
as the Bank may reasonably request in writing always including the
following without request:
14.1 As soon as possible but in any event within 120 days of the end of
each Financial Year copies of the audited annual profit and loss
statement and balance sheet of the Guarantor and unaudited annual
profit and loss statement and balance sheet of the Borrower along with
corresponding accounting workpapers prepared in accordance with
Guarantor audit.
14.2 As soon as possible but in any event within 60 days of the end of each
quarterly period a copy of the management accounts and of the
unaudited balance sheet and profit and loss statement of the Borrower
and the Guarantor.
14.3 Quarterly certificate of compliance from the Guarantors that they are
not in breach of any obligations or covenants under any of their debt.
All of the financial information referred to above shall be prepared in
accordance with applicable accounting standards.
15. FINANCIAL COVENANTS - SECTION DELIBERATELY LEFT BLANK
16. EVENTS OF DEFAULT
If any of the following events occur ("Events of Default") the Loans shall
at the option of the Bank and notwithstanding any delay or previous waiver
of the right to exercise such option become immediately due and payable
upon written demand by the Bank to the Borrower and the obligations to the
Bank under this Agreement shall be cancelled on the occurrence of any of
the following events;
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16.1 If the Borrower fails to pay the Loans or any part thereof or any
interest thereon or any other monies payable to the Bank at or before
the due time on the due date in the manner specified in this Agreement
and such default continues for more than three (3) days.
16.2 If the Borrower fails to observe or perform any obligations to be
observed or performed by it under this Agreement or in connection with
any transaction contemplated by this Agreement and if such default
shall in the opinion of the Bank be capable of prompt remedy, the
Borrower shall not have remedied such default within five (5) days
after notification by the Bank to the Borrower requiring remedy of
such default.
16.3 Any representation or statement made or deemed to be made by the
Borrower in this Agreement or in writing pursuant to this Agreement
shall not be complied with or shall prove to be untrue in any respect
which materially adversely affects the interests of the Bank on any
date as of which it was made or deemed made.
16.4 The Borrower fails to duly pay any debt constituting principal and
interest owed by it to any other persons other than the Bank with
respect to borrowed money or money otherwise owed under any note,
bond, or similar instrument or fails to pay when the same becomes due
and payable in excess of A$35,000 and which breach or default has not
been waived and, with notice or the passage of time, or both, allows
the maturity of such debt to be accelerated.
16.5 If all or any part of this Agreement becomes void, illegal, invalid,
unenforceable, or of limited or reduced force or effect.
16.6 Any other present or future indebtedness of the Borrower, or any
Subsidiary of the Borrower for borrowed money shall become due and
payable prior to the stated maturity thereof as a result of a default
or any such indebtedness shall not be paid on the due date thereof or
upon the expiration of any applicable grace period therefor, or the
Borrower, or any Subsidiary of the Borrower shall fail to pay when due
or upon the expiration of any applicable grace period therefor any
amount payable by it under any present or future guarantee for
borrowed money or for the purchase of fixed assets on deferred terms
or any encumbrance over any assets of the Borrower, or any Subsidiary
of the Borrower shall be or become enforceable.
16.7 A distress or other execution is levied or enforced upon or against
any part of the property of the Borrower for an amount exceeding
A$500,000.00 and is not withdrawn or satisfied within fourteen (14)
days of having been so levied or enforced and the Bank considers that
such event is prejudicial to the interests of the Bank under this
Agreement.
16.8 If the Borrower fails (as defined in Section 459F of the Corporations
Law) to comply with a statutory demand (as defined in Section 9 of the
Corporations Law) or is presumed to be insolvent pursuant to Section
459C(2)(a) of the Corporations Law or admits such fact in writing.
16.9 If the Borrower is wound up or if a petition is presented or an order
is made for the winding up of the Borrower and is not withdrawn within
fourteen (14) days or if a resolution is passed for the winding up of
the Borrower otherwise than for the purpose of reconstruction or
amalgamation the terms of which have previously been approved in
writing by the Bank such approval not to be unreasonably withheld.
16.10 If a receiver or receiver and manager is appointed in respect of any
part of the assets of the Borrower or an encumbrancer takes possession
of the undertaking or the property of the Borrower or any part
thereof.
16.11 If the Borrower makes default under any charge or security in favor or
any person other than the Bank.
16.12 If an inspector of all or any part of the affairs of the Borrower is
appointed pursuant to the Corporations Law (or the corresponding
legislation of any place applicable to the Borrower).
16.13 If the Borrower suspends payment of its debts, which expression shall
have the meaning that it has for the purposes of Section 40 of the
Bankruptcy Xxx 0000 of Australia.
16.14 If a compromise or arrangement is proposed between the Borrower and
its creditors or any class of them or if an application is made to a
court for an order summoning of creditors or any class of them of the
Borrower.
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16.15 If without the prior written consent of the Bank the Borrower reduces
or attempts to reduce its capital or buy back any of its shares.
16.16 If the Borrower stops payment generally.
16.17 If the Borrower is placed under voluntary administration pursuant to
Part 5.3A of the Corporations Law or causes or propose to cause a
meeting of its creditors to be summoned for the purposes of placing it
under administration pursuant to Part 5.3A of the Corporations Law.
16.18 If any of the property of the Borrower or the ownership of which is in
the opinion of the Bank material to the ability of the Borrower to
perform its obligations under this Agreement is seized or otherwise
expropriated nationalized confiscated or acquired through any
governmental action or intervention or if custody or control of such
property shall be assumed by any government or government agency.
16.19 If any governmental or semi-governmental authorization approval
license consent or agreement which the Bank deems essential to the
Borrower's performance of its obligations under this Agreement is
revoked terminated cancelled or withheld.
16.20 If without the prior written consent of the Bank the Memorandum or
Articles of Association of the Borrower is altered in a manner which
in the reasonable opinion of the Bank is material to the performance
by the Borrower of its obligations under this Agreement.
16.21 If a meeting of the Borrower is called for the purpose of considering
and if thought fit passing any resolution the passing of which would
constitute or give rise to an Event of Default.
16.22 If in the opinion of the Bank there is a material change in the
ownership control or management of the Borrower which is likely to
adversely affect the ability of the Borrower to conduct its business
in a proper manner and to carry out its obligations under this
Agreement
16.23 If the Borrower defaults in the performance or observance of any
provision of any other indebtedness to or security of the Bank and the
Borrower whether the indebtedness or security is collateral to this
Agreement or whether it is a separate Agreement between the Bank and
the Borrower and such default continues for more than seven (7) days
after the due date.
16.24 If the Borrower shall do any act deed matter or thing or knowingly or
willingly permit or suffer any act deed matter or thing to be done
whereby directly or indirectly the security of the Bank shall in the
opinion of the Bank become deteriorated or lessened in value.
16.25 If the Borrower shall at any time not have an auditor appointed
pursuant to the provision of the Corporations Law.
16.26 If the Borrower makes any material change to the business it carries
on without the prior written consent of the Bank or if the Borrower
ceases or threatens to cease to carry on its business.
16.27 If the Borrower suffers any material adverse change in its financial
condition which may materially affect the interest of the Bank unless
such change is agreed to in writing by the Bank.
16.28 The Guarantor shall cease, directly or indirectly, to own free and
clear of all liens or other encumbrances, 75% of the issued share
capital of the Borrower.
16.29 If any of the above events of default occur in respect of the
Guarantor.
16.30 If the Guarantor withdraws its Guarantee
16.31 If either Guarantor defaults under any of its credit agreements.
17. INDEMNITIES
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The Borrower indemnifies the Bank from and against all actions, suits,
claims, demands, losses, liabilities, damages, costs and expenses which may
be made or brought against or suffered or incurred by the Bank arising out
of or in connection with:
17.1 any Event of Default or any event which with the giving of notice, the
passage of time or the fulfillment of any other condition would become
an Event of Default; or
17.2 any failure by the Borrower to take an Advance in accordance with any
request for a Drawdown.
18. CERTIFICATIONS
18.1 Any document or thing required to be certified by the Borrower shall
be certified by a director or secretary of the Borrower or in such
other manner as the Bank may approve.
18.2 A certificate signed by an Authorised Officer of the Bank stating any
amount or rate for the purpose of this Agreement shall in the absence
of manifest error be conclusive and binding on the Borrower.
19. POWER OF ATTORNEY
If any Event of Default occurs, the Borrower hereby irrevocably appoints
the Bank and each Authorised Officer severally its attorney to do all acts
and things which may or ought to be done by the Borrower under this
Agreement and without limiting the generality of the foregoing the attorney
shall have power in the name of the Borrower to sign, draw, endorse, accept
or negotiate any draft, order, cheque, promissory note or other instrument
of a like nature or not as the attorney shall think fit.
20. UNLAWFULNESS
If:
20.1 any law, regulation or regulatory requirement or judgment, order in
direction of any court, tribunal or authority binding upon the Bank in
the jurisdiction in which the Bank is formed or has its principal or
lending office(s) or in which may action is required to be performed
by it for the purposes of this Agreement; or
20.2 any change in the interpretation of any such law, regulation or
regulatory requirement or judgment, order or direction of any court,
tribunal or authority by any government or governmental agency charged
with the administration thereof or by a court of competent
jurisdiction or compliance by the Bank with any respect or direction
(whether or not having the force of law) of the Reserve Bank of
Australia or any government or other governmental agency in accordance
with whose requests or directions the Bank is accustomed to act;
renders it unlawful for the Bank to meet any of its obligations under the
Facility, the Bank shall promptly notify the Borrower and the following
provisions shall apply:
20.3 the Borrower and the Bank shall negotiate for a period not exceeding
thirty (30) days with a view to the Bank making arrangements to be
able to meet the relevant obligations under the Facility in whole or
in part in a manner which is not unlawful; and
20.4 if no such arrangements have been made by the end of such period,
thereupon the Bank shall be released from its obligations under this
Agreement, the Facility shall be cancelled and the Borrower shall pay
to the Bank the Loans under this Agreement.
21. AUTHORITY TO DEBIT ACCOUNTS
The Borrower irrevocably authorizes and directs the Bank to debit any
account or accounts of the Borrower with the Bank in respect of any amounts
that are from time to time due and payable under this Agreement.
22. NO WAIVER
No failure to exercise and no delay in exercising on the part of the Bank
any right, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right power
or privilege
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preclude any other or further exercise thereof, or the exercise of any
other right, power or privilege. The rights and remedies of the Bank
provided in this Agreement are cumulative and not exclusive of any rights
or remedies provided by law or equity or legislation or regulation.
23. MERGER
23.1 The representations and warranties of the Borrower in this Agreement
shall survive the execution of this Agreement and the making of any
Advance or issue of Letter of Credit or Guarantee under this Agreement
and shall inure for the benefit of the Bank until the Loans have been
paid in full by the Borrower to the Bank.
23.2 If the liability of the Borrower to pay to the Bank any moneys payable
under this Agreement becomes merged in any deed, judgment, order or
other thing the Borrower shall pay interest on the amount owing from
time to time under this Agreement and that fixed by or payable under
that deed, judgment, order or other thing.
24. TIME OF THE ESSENCE
Time shall be of the essence as regards any date or period determined under
this Agreement save only to the extent that any such date or period may be
altered by mutual agreement between the parties whereupon time shall be of
the essence as regards such altered date or period.
25. SET OFF
25.1 the Borrower and the Bank do expressly acknowledge and agree that:
25.1.1 Where the Bank now or at any time in the future is indebted on
any account to the Borrower pursuant to arrangements made
between them such arrangements are hereinafter referred to as
the "Arrangements".
25.1.2 Notwithstanding the Arrangements and any other provision of
this Agreement (and without prejudice to the Bank's other
rights and remedies) any monies (whether by way of principal
interest or otherwise and whether present future actual or
contingent) which the Bank may now or may hereafter owe to the
Borrower under the Arrangements may be applied to and set off
by the Bank as and when the same may become due and payable pro
rata against the Loans as and when they become due and payable
to the intent and effect:
(i) first that the Bank may at any time and from time to time
deduct from and retain out of the monies otherwise payable
by the Bank to the Borrower pursuant to the Arrangements
such amounts as the Bank may think fit and apply or set
off such amounts in or toward or against satisfaction of
the Loans; and
(ii) secondly that upon default by the Borrower hereunder the
Bank shall not be obliged to pay any monies to the
Borrower under the Arrangements until the obligations of
the Borrower to the Bank to pay any monies to the Bank
hereunder are paid and satisfied in full.
25.2 The contractual rights of set off conferred on the Bank under
sub-clause 25.1 of this clause are in addition to, and not in
substitution for, any rights of set off otherwise conferred on or
available to the Bank at law or in equity including (without
limitation) any banker's rights of set off or right of combination of
accounts or banker's lien.
25.3 For the avoidance of doubt the Bank and the Borrower further declare
and acknowledge that the debts and liabilities arising or created
hereunder and pursuant hereto and under and pursuant to the
Arrangements are mutual debts within the meaning of Section 86(1) of
the Bankruptcy Xxx 0000 of the Commonwealth of Australia (as
incorporated in the Corporations Law) and that upon the liquidation or
bankruptcy of the Borrower the provisions of Section 86 of the said
Bankruptcy Act shall apply so that any sum due from the Borrower to
the Bank hereunder shall be set off against any sum due from the Bank
to the Borrower under the Arrangements
25.4 The Borrower acknowledges and agrees that it will not and will not
attempt to prevent the Bank from exercising its rights of set off as
aforesaid in the circumstances contemplated in respect thereof.
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26. APPROPRIATION
The Bank may appropriate any payment towards the satisfaction of any moneys
due by the Borrower in any way that the Bank thinks fit and notwithstanding
any purported appropriation by the Borrower
27. SUCCESSORS
This Agreement shall bind the parties and their respective heirs executors
administrators successors and assigns.
28. ASSIGNMENT
The Bank may at any time assign the benefits and obligations on its part to
be enjoyed or performed under this Agreement. The Borrower shall not assign
or purport to assign any of the benefits or obligations on its part to be
enjoyed or performed under this Agreement without the consent in writing of
the Bank.
29. NOTICES
Any notice demand consent or other communication to be given under or in
connection with this Agreement shall be in writing or if it is to be given
by the Bank may be signed by any Authorised Officer of the Bank or any
solicitor for the time being acting for the Bank and if it is to be given
by the Borrower shall be under the common seal of the Borrower or the hand
of an Authorised Officer of the Borrower and may be served either:
29.1 personally; or
29.2 by posing the same by registered or certified mail to the party to
whom the notice is directed at its address appearing in this Agreement
or at any other address of which prior notification shall have been
given by post shall be deemed to have been received by the party to
whom it is addressed at the expiration of forty eight (48) hours after
the same has been properly posted; or
29.3 by facsimile transmission;
To the Bank: BANK ONE, NA, XXXXX 00, 00 XXXXXXXX XXXXXX, XXXXXX XXX
0000
Attention: XX X X XXXXXX
Facsimile: (00) 0000 0000
or by other facsimile number of which prior to notification shall
have been given to the sender prior to the transmission of the
facsimile and any facsimile transmission shall be deemed to have been
served on the date of transmission by the sender if the sender shall
receive confirmation of receipt from the recipient. The original of
any facsimile transmission shall be posted in accordance with
sub-clause 29.2 of this clause on the date of transmission or if
transmitted after usual posting hours the next Business Day.
If the date of dispatch is not a Business Day in the place to which such
notice, request demand or other communication is sent it shall be deemed to
have been received at the commencement of business on the next following
Business Day in such place. Notice given to any one or more of the persons
(if more than one) comprised in the expressions "the Borrower" shall be
deemed notice to all such persons. Signatures may be manuscript or may be
printed or reproduced by other mechanical means.
30. OTHER DOCUMENTS
The Borrower shall either before or after the making of any Advance under
this Agreement do all such acts matters and things and shall sign or
execute and deliver all such documents or writing or assurances as may in
the reasonable opinion of the Bank be necessary or expedient to further and
more effectually carry into full effect the provisions of this Agreement
and for conferring the full benefit thereof upon the Bank.
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31. AMENDMENT
No amendment of this Agreement shall bind the parties unless made in
writing expressed to be supplemental to or in substitution for the whole or
part of this Agreement
32. GOVERNING LAW AND JURISDICTION
This Agreement and the rights and obligations of the parties shall be
governed by and construed in accordance with the laws in force in the state
of NEW SOUTH WALES and the parties agree by the execution of this Agreement
to irrevocably submit to the non-exclusive jurisdiction of the Courts in the
state of NEW SOUTH WALES in respect of all matters arising under or in
connection with this Agreement provided always that the Bank may proceed in
the Courts of any Territory State or country having or claiming jurisdiction
in respect of the matter which is the subject of the proceedings.
33. SEVERANCE
Any provision of this Agreement which is or becomes prohibited invalid
unlawful void or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective and capable of severance without affecting the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
35. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions upon which the Bank
will provide financial accommodation to the Borrower and supersedes any
previous of extant arrangements with respect to the same.
IN WITNESS whereof the parties have signed this Agreement on the day and year
hereinbefore first mentioned.
SIGNED for and on behalf of
BANK ONE, NA
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxx
---------------------------------------- -------------------------
Authorised Signatory (Name/Title) Signature
First Vice President
THE COMMON SEAL of )
DAISYTEK AUSTRALIA PTY LTD )
was hereunto affixed in the presence of: )
/s/ Xxxxxxx Xxxxx
---------------------------------------- -------------------------
Authorised Signatory (Name/Title) Signature
---------------------------------------- -------------------------
Authorised Signatory (Name/Title) Signature
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APPENDIX A
FACILITY PRICING: Facility pricing to be determined by the following grid of
Total Debt to EBITDA with Total Debt to EBITDA definition to
match leverage covenant included in the Term Sheet. Initial
pricing shall be set at Level 3. The calculation of ratios is
based on the accounts of Daisytek, Inc. as stipulated in the
Credit agreement between Daisytek, Inc. and various banks
dated December 18, 2000.
PRICING GRID
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
--------------------------------------------------------------------------------------------------------
TOTAL DEBT/EBITDA <1.0 >=1.0<1.50 >=1.50<2.0 >=2.0<2.5 >=2.5<3.0
--------------------------------------------------------------------------------------------------------
FACILITY FEE 20.0 bps 25.0 bps 30.0 bps 37.5 bps 37.5 bps
--------------------------------------------------------------------------------------------------------
ADVANCE MARGIN 130.0 bps 137.5 bps 157.5 bps 175.0 bps 200.0 bps
--------------------------------------------------------------------------------------------------------
ALL-IN "COST 150.0 bps 162.5 bps 187.5 bps 212.5 bps 237.5 bps
--------------------------------------------------------------------------------------------------------
bps= basis points
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SCHEDULE I
ADVANCE DRAWDOWN NOTICE
TO: Money Market Desk
BANK ONE, NA (A.R.B.N. 065 752 918)
Xxxxx 0
00 Xxxxxxxxx Xxxxxx
XXXXXXXX XX 0000
FAX: 00 0000 0000
In accordance with Facility Agreement dated --------------- day of ------------
("the Agreement") DAISYTEK AUSTRALIA PTY LTD (A.C.N. 075 675 795) irrevocably
gives you notice of drawdown under the Facility as follows:
ADVANCE
1. Date of Drawdown: --------------------
2. Amount of Drawdown: $ ------------------
(currency and amount)
3. Tenor Required: --------------------
4. Other requests/special conditions (if any)
The Borrower by its execution of this Notice reaffirms and reconstitutes all
representations and warranties or agreements of the Borrower in the Agreement as
if made at the date of this Notice and certifies that no Event of Default (as
defined in the Agreement) has occurred or is continuing or is likely to result
from this transaction.
DATED this day of
SIGNED for and on behalf
Daisytek Australia Pty Ltd
--------------------------- ---------------------------
Authorised Signatory: Name/Title Signature
--------------------------- ---------------------------
Authorised Signatory: Name/Title Signature
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