EXHIBIT 10.36a
FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
is dated as of the 7th day of February, 1997, and entered into among NU-KOTE
HOLDINGS, INC., a Delaware corporation ("Holding"), NU-KOTE INTERNATIONAL,
INC., a Delaware corporation ("Company"), the Lenders signatory hereto,
BARCLAYS BANK PLC, in its capacity as documentation agent ("Documentation
Agent") and NATIONSBANK OF TEXAS, N.A., a national banking association, as
administrative agent and collateral agent (in such capacities, "Agent").
WITNESSETH:
WHEREAS, Holding, Company, Lenders, Documentation Agent and Agent
entered into an Amended and Restated Credit Agreement, dated as of October
15, 1996 ("Credit Agreement");
WHEREAS, Holding and Company have requested that Lenders waive during
the period starting on December 27, 1996, to March 30, 1997, inclusive (the
"Waiver Period"), the Event of Default arising from non-compliance with
Section 6.6A of the Credit Agreement for the fiscal quarter ended December
27, 1996;
WHEREAS, Lenders and Agent have agreed to grant the request of Holding
and Company and to modify the Credit Agreement upon the terms and conditions
set forth below.
NOW, THEREFORE, for valuable consideration hereby acknowledged, Holding,
Company, Lenders, Documentation Agent and Agent 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. MAXIMUM OUTSTANDING. Notwithstanding anything to the
contrary in the Credit Agreement, Total Utilization of Revolving Credit
Commitments shall not exceed $95,000,000, starting on February 7, 1997,
through the end of the Waiver Period.
SECTION 3. APPLICABLE MARGIN. Notwithstanding anything to the contrary
in the definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement, the Applicable Margin shall be 1.50% per annum, starting on
February 7, 1997, through the end of the Waiver Period.
SECTION 4. WAIVERS. (a) Subject to the terms and conditions hereof,
Lenders hereby waive, but only during the Waiver Period, the Specified
Default (hereinafter defined); PROVIDED, HOWEVER, that Lenders' waiver of the
Specified Default 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 DEFAULT" shall mean the failure of Holding and Company to
observe the covenant set forth in Section 6.6A of the Credit Agreement for
the fiscal quarter ended December 27, 1996. At the end of the Waiver Period,
the waiver of the Specified Default will automatically terminate.
(b) In consideration of Lenders' waiver of the Specified Default 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 5. CONDITIONS PRECEDENT. This Amendment and Waiver shall not
be effective until all proceedings 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:
(a) All fees and expenses, including legal and other professional
fees and expenses incurred, payable on or prior to the date of this
Amendment and Waiver to Agent, including, without limitation, the fees and
expenses of its counsel, shall have been paid to the extent that same had
been billed prior to the date of this Amendment and Waiver.
(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 and Waiver, of the
representations and warranties set forth in Section 4 of the Credit
Agreement, the other Loan Documents and in this Amendment and Waiver,
and (ii) that there exists no Potential Event of Default or Event of
Default, after giving effect to this Amendment and Waiver, and the
execution, delivery and performance of this Amendment and Waiver will
not cause a Potential Event of Default or Event of Default; and
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(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
Waiver and the transactions contemplated hereby, including without
limitation copies of resolutions of the board of directors of each of
Holding and Company authorizing the transactions contemplated by this
Amendment and Waiver.
(c) Company or Holding shall have paid to Agent for the pro rata
account of Lenders an amendment fee in the amount of $175,000.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Holding and Company
represent and warrant to Lenders, Documentation Agent and Agent that (a) this
Amendment and Waiver 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 and
Waiver, (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 and Waiver, (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, and (e) the Credit
Agreement, as amended hereby, and the other Loan Documents remain in full
force and effect.
SECTION 7. EXPENSES OF LENDERS. Holding and Company hereby jointly and
severally agree to pay on demand all costs and expenses incurred by Agent,
including costs and fees of counsel to Agent in connection with the
preparation, negotiation, review and execution of this Amendment and Waiver
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications and supplements thereto.
SECTION 8. 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 and Waiver.
SECTION 9. CONSENTS OF EUROCURRENCY BORROWERS AND EUROCURRENCY LENDERS.
Each Eurocurrency Borrower and Eurocurrency Lender by its execution below
consents and agrees to this Amendment and Waiver 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 and Waiver 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 and Waiver. 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.
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SECTION 10. COUNTERPARTS. This Amendment and Waiver 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 11. 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 12. GOVERNING LAW. (a) THIS AGREEMENT AND ALL 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 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 13. ENTIRE AGREEMENT. THIS AGREEMENT 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. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, this Amendment and Waiver is executed as of the date
first set forth above.
Holding: NU-KOTE HOLDING, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Treasurer
--------------------------------
Company: NU-KOTE INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Treasurer
--------------------------------
Agent: NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Senior Vice President
Documentation Agent: BARCLAYS BANK PLC
By: /s/ XXX X. XXXXXXXX
-----------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: Vice President
--------------------------------
Lenders and Eurocurrency NATIONSBANK OF TEXAS, N.A.
Lenders:
Address: By: /s/ XXXXXXX X. XXXXXXXXXXX
000 Xxxx Xxxxxx, 00xx Xxxxx -----------------------------------
Xxxxxx, Xxxxx 00000 Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Attn: Xx. Xxxxxxx X. Xxxxxxxxxxx, XX Title: Senior Vice President
Senior Vice President
BARCLAYS BANK PLC
Address: By: /s/ XXX X. XXXXXXXX
000 Xxxxxxxx -----------------------------------
Xxx Xxxx, Xxx Xxxx 00000
Attn: L. Xxxxx Xxxxxx Name: Xxx X. Xxxxxxxx
Associate Director ---------------------------------
Title: Vice President
--------------------------------
ABN AMRO BANK, N.V.
Address: By: /s/ XXXXXX X. XXXX
Three Riverway, Suite 1700 -----------------------------------
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx
Vice President ---------------------------------
Title: Group Vice President
--------------------------------
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Group Vice President
--------------------------------
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
Address: By: /s/ XXXX. X. XXXXXXX
Promenade Two, Suite 3500 -----------------------------------
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 Name: Xxxx. X. Xxxxxxx
Attn: Xxxxx X. Xxxxxx ---------------------------------
Vice President
Title: Vice President
--------------------------------
By: /s/ XXXX X. XXXXX
-----------------------------------
Name: Xxxx X. Xxxxx
---------------------------------
Title: Asst. Vice President
--------------------------------
CREDIT LYONNAIS, NEW YORK BRANCH
Address: By:
0000 Xxxx Xxxxxx, Xxxxx 0000 X -----------------------------------
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxx Name:
Assistant Vice President ---------------------------------
Title:
--------------------------------
DEUTSCHE BANK, A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
Address: By:
00 X. 00xx Xxxxxx, 00xx Xxxxx -----------------------------------
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx Name:
Vice President ---------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
FIRST AMERICAN NATIONAL BANK
Address: By: /s/ XXXXX XXXXXX
0xx & Xxxxx Xxxxxx XX-0000 -----------------------------------
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
Address: By: /s/ XXXXXXXX XXXXXXX
One First National Plaza -----------------------------------
Mail Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000 Name: Xxxxxxxx Xxxxxxx
Attn: Xxxxxxx X. Xxxxx ---------------------------------
Vice President
Title: Vice President
--------------------------------
SOCIETE GENERALE
Address: By: /s/ XXXXXXX X. XXXXX
Xxxxxxxx Xxxx Center -----------------------------------
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000 Name: Xxxxxxx X. Xxxxx
Attn: Xxxxxxx Xxxxx ---------------------------------
Vice President
Title: Vice President
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CONSENTED AND AGREED TO BY EUROCURRENCY BORROWERS:
PELIKAN SCOTLAND LIMITED
By: /s/ XXXXXX XXXXXXX
--------------------------------
Name: Xxxxxx XxXxxxx
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Title: Director
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PELIKAN PRODUKTIONS AG
By: /s/ XXXX XXXXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxxxx
------------------------------
Title: Director
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PELIKAN HARDCOPY (INTERNATIONAL) AG
By: /s/ XXXX XXXXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxxxx
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Title: Managing Director
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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
and Waiver), each hereby consents and agrees to the foregoing Amendment and
Waiver 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 and Waiver 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 Waiver, 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: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Asst. Chief Financial Officer
--------------------------------
INTERNATIONAL COMMUNICATION
MATERIALS, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Asst. Treasurer
--------------------------------
NU-KOTE IMAGING INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Asst. Treasurer
--------------------------------
NU-KOTE IMPERIAL, LTD.
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Asst. Treasurer
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