EXHIBIT 10.33
THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT, WAIVER, AND AMENDMENT
TO CERTAIN EUROCURRENCY LOAN DOCUMENTS
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THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
WAIVER, AND AMENDMENT TO CERTAIN EUROCURRENCY LOAN DOCUMENTS ("Amendment") is
dated as of the 1st day of April, 1998, and entered into among NU-KOTE HOLDINGS,
INC., a Delaware corporation ("Holding"), NU-KOTE INTERNATIONAL, INC., a
Delaware corporation ("Company"), the Lenders and Eurocurrency Lenders
signatory hereto, BARCLAYS BANK PLC, in its capacity as documentation agent
("Documentation Agent"), NATIONSBANK OF TEXAS, N.A., a national banking
association, as administrative agent and collateral agent (in such capacities,
"Agent"), and BARCLAYS BANK PLC and NATIONSBANK OF TEXAS, N.A., in their
capacity as Agent, Fronting Bank and Overdraft Provider, and Collateral Agent
and Documentation Agent, respectively, under the UK Facility Agreement and the
Swiss Facility Agreement referenced herein.
WITNESSETH:
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WHEREAS, Holding, Company, Lenders, Documentation Agent and Agent entered
into a Second Amended and Restated Credit Agreement, dated as of July 31, 1997,
as amended by First Amendment to Second Amended and Restated Credit Agreement
dated as of November 28, 1997, and by Second Amendment to Second Amended and
Restated Credit Agreement, dated as of December 31, 1997 (as amended, the
"Credit Agreement");
WHEREAS, Holding and Company have requested that Lenders (i) defer a
portion of the mandatory $5,000,000 reduction in the commitments of the Lenders
to lend from April 1, 1998, until July 1, 1998, and (ii) waive during the period
starting on December 31, 1997, to May 29, 1998, inclusive (the "Waiver Period"),
Holding's and the Company's failure to comply with certain financial covenants
set forth in the Credit Agreement, and
WHEREAS, Lenders and Agent have agreed to grant the requests of Holding and
Company and the parties hereto have agreed to modify the Credit Agreement and
certain Eurocurrency Loan Documents upon the terms and conditions set forth
below.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions. Unless specifically defined or redefined below,
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
SECTION 2. Waivers. Subject to the terms and conditions hereof, Lenders
hereby waive, but only during the Waiver Period, the Specified Defaults
(hereinafter defined); provided, however, that Lenders' waiver of the Specified
Defaults and their rights and remedies as a result of the occurrence thereof
shall not constitute and shall not be deemed to constitute a waiver of any other
Event of Default, whether arising as a result of further violations of any
provision of the Credit
Agreement previously violated by Holding or Company, or a waiver of any rights
and remedies arising as a result of such other Events of Default. As used
herein, "Specified Defaults" shall mean the failure of Holding and Company to
observe (i) the covenants set forth in Section 6.6A, Section 6.6B, Section 6.6C,
Section 6.6E, and Section 6.6H of the Credit Agreement for the fiscal quarters
ended December 31, 1997, and March 31, 1998, and (ii) the covenants set forth in
Section 6.6F and Section 6.6G for the months ended December 31, 1997, January
31, 1998, February 28, 1998, March 31, 1998, and April 30, 1998. At the end of
the Waiver Period, the waiver of the Specified Defaults will automatically
terminate.
SECTION 3. Amendments to Credit Agreement. Subject to the terms and
conditions hereof, the provisions of the Credit Agreement enumerated below are
amended as follows:
(a) Section 2.4A(iii)(a) of the Credit Agreement is amended to read as follows:
On April 30, 1998, May 29, 1998, June 30, 1998, July 1, 1998, and October
1, 1998, prepay an aggregate principal amount of the Revolving Credit Loans
in the amount, if any, necessary to reduce the sum of the aggregate
principal amount of all Revolving Credit Loans on such date plus the Letter
of Credit Usage on such date, to an amount which does not exceed the
aggregate Revolving Credit Commitments on such date. On each such date the
Company shall also prepay all accrued and unpaid interest on the principal
amount so prepaid.
(b) Section 2.4E(ii) of the Credit Agreement is amended to read as follows:
In addition to the reductions specified in subsection 2.4E(i) above, the
Revolving Credit Commitments shall automatically and permanently reduce by
the amount of $1,000,000 on April 30, 1998, by the amount of $4,000,000 on
May 29, 1998, and by the amount of $2,500,000 on each of July 1, 1998, and
October 1, 1998.
(c) Section 5.1 of the Credit Agreement is amended to add thereto subsection
(xv) to read as follows:
(xv) As soon as practicable and in any event within thirty (30) days
after the last day of each calendar month (including the twelfth calendar
month of each Fiscal Year) thereafter beginning with the calendar month
ending March 31, 1998, consolidated balance sheets of Xxxxx and its
Subsidiaries, of MIT and its Subsidiaries, of Pelikan Hardcopy and its
Subsidiaries, of Pelikan Scotland and its Subsidiaries, and of Produktions
and its Subsidiaries, each as at the end of such period, and the related
consolidated statement of income, stockholders equity and cash flow of such
Persons for such month, all in reasonable detail and certified by the Chief
Financial Officer, Corporate Controller or Treasurer of Holding or such
Person to fairly present, in all material respects, the financial condition
of such Persons as at the date indicated and the results of their
operations for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments, and except that such financial
statement need not contain notes, but shall be prepared substantially in
conformity with GAAP, together with such additional information as Agent
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may reasonably request including without limitation monthly reports (both
hard copies and copies on disks) of the accounts receivable and inventory
of Produktions and Pelikan Hardcopy, and copies of annual statutory reports
of such Persons filed in their respective jurisdictions of organization.
(d) Section 6.3(vi) of the Credit Agreement is amended to read as follows:
On and after December 31, 1997, through and including May 29, 1998, Company
and its Domestic Subsidiaries may not make further Investments in
(including intercompany loans to) or otherwise transfer funds or other
assets to Eurocurrency Borrowers for any purpose, except for fundings to or
for the benefit of MIT if the prior written consent of Required Lenders to
such fundings has been obtained, and trade payments made on account of
inventory purchased in the ordinary course of business; furthermore (A)
with respect to the aggregate principal amount of all such Investments in
all such Eurocurrency Borrowers, Company or any such Domestic Subsidiary,
as appropriate, shall maintain a ledger recording all such Investments in
and intercompany loans made pursuant to this subsection 6.3(vi), and such
ledger shall be available for inspection at any Lender's request and (B)
all intercompany loans made pursuant to this subsection 6.3(vi) shall be
evidenced by promissory notes which shall be on terms and conditions
satisfactory to Agent, including collateral, and which shall be pledged and
delivered to Agent pursuant to the Collateral Documents;
(e) Section 6.3(vii) of the Credit Agreement is amended to read as follows:
On and after December 31, 1997, through and including May 29, 1998, Company
and its Domestic Subsidiaries may not make further Investments in
(including intercompany loans to) or otherwise transfer funds or other
assets to Latin American Subsidiaries for any purpose; furthermore (A) with
respect to the aggregate principal amount of all such Investments
outstanding on December 31, 1997, Company or any such Domestic Subsidiary,
as appropriate, shall maintain a ledger recording all such Investments in
and intercompany loans made pursuant to this subsection 6.3(vii) prior to
December 31, 1997, and such ledger shall be available for inspection at any
Lender's request and (B) all intercompany loans made pursuant to this
subsection 6.3(vii) shall be evidenced by promissory notes which shall be
on terms and conditions satisfactory to Agent, including collateral, and
which shall be pledged and delivered to Agent pursuant to the Collateral
Documents;
(f) Section 6.3 of the Credit Agreement is amended to add at the end thereof
the following sentence:
Notwithstanding anything in this Agreement or the Eurocurrency Loan
Documents to the contrary, Holding and its Subsidiaries shall not make any
intercompany subordinated loans, amounts or advances, or enter into any
subordination agreements with respect to intercompany loans, amounts or
advances.
SECTION 4. Amendments to Swiss Facility Agreement, U.K. Facility Agreement,
and Certain Related Documents. Effective as of the date hereof, the Swiss
Facility Agreement and the
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U.K. Facility Agreement are hereby amended to provide that, notwithstanding
anything to the contrary in the Swiss Facility Agreement or the U.K. Facility
Agreement, the obligations of Barclays Bank PLC as Overdraft Provider (as
therein defined) are terminated, and no further Short-Term Advances (as defined
therein) shall be made by Barclays Bank PLC as Overdraft Provider. Effective as
of the date hereof, Produktions and Pelikan Hardcopy hereby waive the
requirements of the Inventory Pledge Agreement, the Pelikan Hardcopy
International AG Assignment Agreement, and the Pelikan Produktions AG Assignment
Agreement (as such terms are defined in the Swiss Facility Agreement) that
acceleration of the obligations secured shall occur before (a) the Agent may
cause to be taken the actions described in Section 2.4 of the Pelikan Hardcopy
International AG Assignment Agreement and the Pelikan Produktions AG Assignment
Agreement, and (b) the Agent may provide the instructions regarding use and
disposition of Inventory under and as defined in Section 2.4 and Section 2.5 of
the Inventory Pledge Agreement, so long as the Agent provides to Pelikan
Hardcopy and Produktions, as applicable, written notice of the occurrence of a
default prior to taking such action.
SECTION 5. Consent to Sale of Nu-kote de Colombia S.A. and its Subsidiaries
and Retention of Certain Net Cash Proceeds Thereof. Subject to the terms and
conditions hereof, Lenders hereby consent to the sale of the shares of Nu-kote
de Colombia S.A., so long as the gross cash proceeds thereof are not less than
$300,000, the net cash proceeds thereof are delivered to Lenders in prepayment
of the Revolving Credit Loans (which amount shall constitute a permanent
reduction in the Revolving Credit Commitments), all liabilities due and owing in
connection with the business to which such assets relate are assumed by the
purchaser thereof, such sale occurs on or before April 30, 1998, any promissory
note received in connection with such sale is delivered to the Lenders as
Collateral, and such sale is otherwise upon terms reasonably satisfactory to
Agent and heretofore disclosed to Lenders.
SECTION 6. Releases. In consideration of Lenders' agreements herein and
certain other good and valuable consideration, Holding and Company each hereby
expressly acknowledge and agree that neither of them has any setoffs,
counterclaims, adjustments, recoupments, defenses, claims or actions of any
character, whether contingent, non-contingent, liquidated, unliquidated, fixed,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, known or unknown, against any Lender, Documentation Agent or Agent or
any grounds or cause for reduction, modification or subordination of the
Obligations or any liens or security interests of any Lender or the Collateral
Agent. To the extent Holding or Company may possess any such setoffs,
counterclaims, adjustments, recoupments, claims, actions, grounds or causes,
each of Holding and Company hereby waives, and hereby releases each Lender,
Documentation Agent and Agent from, any and all of such setoffs, counterclaims,
adjustments, recoupments, claims, actions, grounds and causes, such waiver and
release being with full knowledge and understanding of the circumstances and
effects of such waiver and release and after having consulted counsel with
respect thereto.
SECTION 7. Conditions Precedent. This Amendment shall not be effective
until all corporate actions of Company taken in connection herewith and the
transactions contemplated hereby shall be satisfactory in form and substance to
Documentation Agent, Agent and Lenders, and each of the following conditions
precedent shall have been satisfied:
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(a) All fees and expenses, including legal and other professional fees
and expenses incurred on or prior to the date of this Amendment by Agent or
any Lender, including, without limitation, the fees and expenses of U.S.
and foreign counsel and title insurance expenses, shall have been paid to
the extent that same have been billed.
(b) Agent and each Lender shall have received each of the following,
in form and substance satisfactory to Agent, Lenders and Agent's counsel in
their sole and absolute discretion:
(1) a certificate of Holding and Company certifying (i) as to
the accuracy, after giving effect to this Amendment, of the
representations and warranties set forth in Section 4 of the Credit
Agreement, the other Loan Documents and in this Amendment, and (ii)
that there exists no Potential Event of Default or Event of Default,
after giving effect to this Amendment, and the execution, delivery and
performance of this Amendment will not cause a Potential Event of
Default or Event of Default;
(2) such other documents, instruments, and certificates, in form
and substance reasonably satisfactory to Lenders, as Lenders shall
deem necessary or appropriate in connection with this Amendment and
the transactions contemplated hereby, including without limitation
copies of resolutions of the boards of directors of each of Holding,
Company, and each Eurocurrency Borrower authorizing the transactions
contemplated by this Amendment; and
(3) a favorable opinion of Swiss counsel to Pelikan Hardcopy and
Produktions with respect to the authority of such Persons to enter
into the transactions contemplated by this Amendment and such other
matters as Agent or its counsel may reasonably request.
(c) All accrued and unpaid interest and fees due with respect to the
Revolving Credit Loans and the Eurocurrency Loans through and including
March 31, 1998, shall have been paid in full.
(d) Company shall have delivered or caused to be delivered to Agent
the items listed on Schedule 1 hereto in form and substance satisfactory to
Agent and its counsel.
SECTION 8. Conditions Subsequent. As conditions subsequent to the
effectiveness of this Amendment, Company shall deliver to Agent, in form and
substance reasonably satisfactory to Agent and its counsel, on or before each of
the dates indicated on Schedule 2 hereto, the items provided on Schedule 2 to be
delivered on or before such date. Upon Company's failure to make any such
delivery, the waiver of the Specified Defaults provided in this Amendment will
automatically terminate and be of no further force and effect.
SECTION 9. Representations and Warranties; Ratifications. Holding and
Company represent and warrant to Lenders, Documentation Agent and Agent that (a)
this Amendment
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constitutes their legal, valid, and binding obligations, enforceable in
accordance with the terms hereof (subject as to enforcement of remedies to any
applicable bankruptcy, reorganization, moratorium, or other laws or principles
of equity affecting the enforcement of creditors' rights generally), (b) there
exists no Potential Event of Default or Event of Default under the Credit
Agreement after giving effect to this Amendment, (c) their representations and
warranties set forth in the Credit Agreement and other Loan Documents are true
and correct on the date hereof after giving effect to this Amendment, (d) they
have complied with all agreements and conditions to be complied with by them
under the Credit Agreement and the other Loan Documents by the date hereof after
giving effect to this Amendment, and (e) the Credit Agreement, as amended
hereby, and the other Loan Documents remain in full force and effect. Except as
expressly modified by this Amendment, the terms and provisions of the Credit
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Except as provided herein, this Amendment
shall not constitute an amendment or waiver of any terms and provisions of the
Credit Agreement and other Loan Documents nor a waiver of the rights of the
Lenders, Documentation Agent and Agent to insist upon compliance with each term,
covenant, condition or provision of the Credit Agreement and other Loan
Documents.
SECTION 10. Expenses of Lenders. Holding and Company hereby jointly and
severally agree to pay on demand all reasonable costs and expenses incurred by
Agent or any Lender, including costs and fees of counsel to Agent or any Lender
and other professional fees and expenses, in connection with the preparation,
negotiation, review and execution of this Amendment and the other Loan Documents
executed pursuant hereto and any and all amendments, modifications and
supplements thereto. Holding and Company hereby confirm their obligation to pay
promptly the costs and expenses for which they are obligated pursuant to Section
10.3 of the Credit Agreement.
SECTION 11. Further Assurances. Holding and Company shall execute and
deliver such further agreements, documents, instruments, and certificates in
form and substance satisfactory to Agent, as Agent or any Lender may deem
necessary or appropriate in connection with this Amendment.
SECTION 12. Representations and Consents of Eurocurrency Borrowers and
Eurocurrency Lenders. Each Eurocurrency Borrower and Eurocurrency Lender by its
execution below consents and agrees to this Amendment and agrees that the
Eurocurrency Credit Agreement or Eurocurrency Credit Agreements to which it is a
party are and shall continue to be in full force and effect and are hereby
ratified and confirmed in all respects except that, upon the effectiveness of
and on and after the date of this Amendment each reference to the Credit
Agreement, "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment. Each Eurocurrency Borrower agrees that the
collateral described in the Eurocurrency Security Documents to which it is a
party shall continue to secure the payment of the indebtedness therein
described. Each Eurocurrency Borrower represents and warrants to Lenders,
Documentation Agent and Agent that (a) this Amendment constitutes their legal,
valid, and binding obligations, enforceable in accordance with the terms hereof
(subject as to enforcement of remedies to any applicable bankruptcy,
reorganization, moratorium, or other laws or principles of equity affecting the
enforcement of creditors' rights generally), (b) the representations and
warranties set forth in their respective Eurocurrency Credit Agreement and other
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Eurocurrency Loan Documents are true and correct on the date hereof after giving
effect to this Amendment, and (c) they have complied with all agreements and
conditions to be complied with by them under their respective Eurocurrency
Credit Agreement and the other Eurocurrency Loan Documents by the date hereof
after giving effect to this Amendment.
SECTION 13. Counterparts. This Amendment and the other Loan Documents may
be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought. Telecopies of
signatures shall be binding and effective as originals.
SECTION 14. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
HOLDING AND COMPANY EACH HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR OTHERWISE)
ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY
RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE
SITTING WITHOUT A JURY.
SECTION 15. GOVERNING LAW. (A) THIS AGREEMENT AND ALL DOMESTIC LOAN
DOCUMENTS SHALL BE DEEMED CONTRACTS MADE UNDER THE LAWS OF TEXAS AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF TEXAS,
EXCEPT TO THE EXTENT (1) FEDERAL LAWS GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT AND INTERPRETATION OF ALL OR ANY PART OF THIS AGREEMENT AND ALL
DOMESTIC LOAN DOCUMENTS OR (2) STATE LAW GOVERNS UCC COLLATERAL INTERESTS FOR
PROPERTIES OUTSIDE THE STATE OF TEXAS. WITHOUT EXCLUDING ANY OTHER
JURISDICTION, HOLDING AND COMPANY EACH AGREES THAT THE COURTS OF TEXAS WILL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH.
(B) HOLDING AND COMPANY EACH HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL
PROCESS UPON IT. IN ADDITION, HOLDING AND COMPANY EACH AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY REGISTERED MAIL (RETURN RECEIPT REQUESTED)
DIRECTED TO IT AT ITS ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON RECEIPT BY IT. NOTHING IN
THIS SECTION SHALL AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 16. ENTIRE AGREEMENT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS AMENDMENT
SHALL CONSTITUTE A LOAN DOCUMENT.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first set
forth above.
Holding: NU-KOTE HOLDING, INC.
By:
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Xxxxxxx X. Xxxxxx
Senior Vice President
Company: NU-KOTE INTERNATIONAL, INC.
By:
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Xxxxxxx X. Xxxxxx
Senior Vice President
Agent: NATIONSBANK OF TEXAS, N.A.,
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Senior Vice President
Documentation Agent: BARCLAYS BANK PLC
By:
------------------------------------------
Name:
Title:
Lenders and Eurocurrency NATIONSBANK OF TEXAS, N.A.
Lenders:
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Senior Vice President
BARCLAYS BANK PLC
By:
------------------------------------------
Name:
Title:
ABN AMRO BANK, N.V.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
SOCIETE GENERALE
By:
------------------------------------------
Name:
Title:
OVERDRAFT PROVIDER AND BARCLAYS BANK PLC
FRONTING BANK:
By:
------------------------------------------
Name:
Title:
AGENT UNDER EUROCURRENCY BARCLAYS BANK PLC
CREDIT AGREEMENTS:
By:
------------------------------------------
Name:
Title:
COLLATERAL AGENT AND NATIONSBANK OF TEXAS, N.A.
DOCUMENTATION AGENT
UNDER EUROCURRENCY
CREDIT AGREEMENTS:
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Senior Vice President
ADDITIONAL EUROCURRENCY NATIONSBANK, N.A.
LENDERS:
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Senior Vice President
DEUTSCHE BANK AG LONDON BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
CREDIT LYONNAIS, S.A.
By:
------------------------------------------
Name:
Title:
CONSENTED AND AGREED TO BY THE UNDERSIGNED IN THEIR CAPACITY AS EUROCURRENCY
BORROWERS:
PELIKAN SCOTLAND LIMITED
By:
----------------------------------
Name:
Title:
PELIKAN PRODUKTIONS AG
By:
----------------------------------
Name:
Title:
PELIKAN HARDCOPY (INTERNATIONAL) AG
By:
----------------------------------
Name:
Title:
CONSENT
Each of the undersigned, as Guarantors under a "Subsidiary Guaranty" and as
grantors under one or more "Subsidiary Security Documents" (as such terms are
defined in the Credit Agreement referred to in the foregoing Amendment), each
hereby consents and agrees to the foregoing Amendment and agrees that (i) each
Subsidiary Guaranty and Subsidiary Security Document is and shall continue to be
in full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of and on and after the date of such
Amendment each reference to the Credit Agreement, "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by such Amendment, and (ii) the
collateral described in the Subsidiary Security Documents shall continue to
secure the payment of the indebtedness therein described.
FUTURE GRAPHICS, INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
INTERNATIONAL COMMUNICATION
MATERIALS, INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
NU-KOTE IMAGING INTERNATIONAL, INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
NU-KOTE IMPERIAL, LTD.
By:
--------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
CONSENT
Each of the undersigned, as Subsidiaries party to one or more "Loan
Documents" (as such terms are defined in the Credit Agreement referred to in the
foregoing Amendment), each hereby consents and agrees to the foregoing Amendment
and agrees that (i) each such Loan Document is and shall continue to be in full
force and effect and is hereby ratified and confirmed in all respects except
that, upon the effectiveness of and on and after the date of such Amendment each
reference to the Credit Agreement, "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by such Amendment, and (ii) the collateral described
in such Loan Documents shall continue to secure the payment of the indebtedness
therein described.
NU-KOTE LATIN AMERICA, INC.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
NU-KOTE INTERNATIONAL DE MEXICO,
S.A. DE C.V.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SCHEDULE 1
Conditions Precedent to Amendment
---------------------------------
1. Audited balance sheets of MIT, of Pelikan Hardcopy, of Pelikan Scotland and
its Subsidiaries, and of Produktions, each as at the end of the fiscal year
ending March 31, 1997, and the related statement of income and stockholders
equity of such Persons for such year, all in reasonable detail and
certified by such Person's independent auditors, and financial statements
of Greif certified by the Chief Financial Officer of such Person, to fairly
present, in all material respects, the financial condition of such Persons
as at the date indicated and the results of their operations for the
periods indicated.
2. True and correct copy of the lease of the Duren, Germany, warehouse, and a
summary of the terms thereof translated into the English language.
3. Current insurance certificates required by the Domestic Loan Documents.
SCHEDULE 2
Conditions Subsequent to Amendment and Date by Which Delivery is Required
1. By the time period required under applicable Swiss law, satisfactory
evidence that the boards of directors of Pelikan Hardcopy and Produktions
have been duly constituted in accordance with Swiss law.
2. By April 30, 1998, documentation satisfactory to perfect the liens of the
Agent for the benefit of the Eurocurrency Lenders upon any inventory of
Pelikan Scotland now or hereafter located in Germany.
3. On or prior to May 15, 1998, a written recapitalization plan, which may
include a debt restructuring plan, for the Holding, Company and the
Subsidiaries prepared by the Company, which shall be in form and substance
reasonably satisfactory to Required Lenders.
