CHF 50,000,000
THIRD AMENDED AND RESTATED REVOLVING
CREDIT FACILITY AGREEMENT
DATED 31 JULY, 1997
BETWEEN
PELIKAN PRODUKTIONS AG
AND
PELIKAN HARDCOPY (INTERNATIONAL) AG
AS BORROWERS
BARCLAYS BANK PLC
AS AGENT
NATIONSBANK OF TEXAS, N.A.
AS COLLATERAL AGENT
NATIONSBANK OF TEXAS, N.A.
AS DOCUMENTATION AGENT
AND
OTHERS
THIS THIRD AMENDED AND RESTATED AGREEMENT is made the 31st day of July,
1997 BETWEEN:
(1) PELIKAN PRODUKTIONS AG and PELIKAN HARDCOPY (INTERNATIONAL) AG
(together the "BORROWERS" and individually a "BORROWER");
(2) BARCLAYS BANK PLC as agent (the "AGENT");
(3) NATIONSBANK OF TEXAS, N.A. as collateral agent (the "COLLATERAL
AGENT", the Agent and the Collateral Agent being hereinafter referred
to collectively as the "AGENTS");
(4) NATIONSBANK OF TEXAS, N.A. as documentation agent (the "DOCUMENTATION
AGENT");
(5) BARCLAYS BANK PLC as fronting bank (the "FRONTING BANK");
(6) BARCLAYS BANK PLC as overdraft provider (the "OVERDRAFT PROVIDER"),
and
(7) THE FINANCIAL INSTITUTIONS named in the First Schedule (the "BANKS").
WHEREAS the parties hereto wish further to amend and restate the Amended
and Restated Revolving Credit Facility dated 15th October, 1996 (as so
amended, the "ORIGINAL AGREEMENT").
NOW IT IS HEREBY AGREED that the Original Agreement is hereby further
amended and restated as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ADVANCE" means, save as otherwise provided herein, an advance made or
to be made by a Lender pursuant to the terms hereof;
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of
exchange for the purchase of the relevant Optional Currency in the London
foreign exchange market with Swiss francs on or about 11.00 a.m. on a
particular day;
"APPLICABLE MARGIN" means four percent (4%) per annum through June 30,
1998, and five percent (5%) per annum thereafter;
"AVAILABLE COMMITMENT" means. in relation to a Bank at any time and
save as otherwise provided herein, its Commitment at such time LESS (i) its
share of the Outstandings (other than any outstanding Short-Term Advance)
at such time (and for the purposes of determining a Bank's share of
Outstandings which comprise L/C Outstandings, such Bank's share shall be
the amount that it may become obliged to pay to the Fronting Bank pursuant
to Clause 8.6) and (ii) except for the purposes of Clause 25, its share of
any Advance which it is obliged, or may become obliged, to make pursuant to
Clause 6.5 in respect of (a) any outstanding Short-Term Advance at close of
business on the day before the proposed Utilization Date and (b) any
Short-Term Advance requested to be made no later than the specified time on
such proposed Utilization Date;
"AVAILABLE FACILITY" means, at any time, the aggregate of the
Available Commitments at such time adjusted, in the case of a proposed
Utilization only. so as to take into account:
(i) any reduction in the Commitment of a Bank which will occur
prior to the commencement of, or during, the Term relating to the
proposed Utilization consequent upon a cancellation of the whole or
any part of the Commitment of such Bank pursuant to the terms hereof;
(ii) the amounts of any Advances (other than any Short-Term
Advances), and/or Letters of Credit which, pursuant to any other
Utilization, any Bank or the Fronting Bank, as the case may be, are
then obliged to make or, as the case may be, issue on or before the
proposed Utilization Date relating to such proposed Utilization; and
(iii) the amounts of any Advances and/or Letters of Credit which
were made or, as the case may be, issued by any Bank or the Fronting
Bank, as the case may, be pursuant hereto and which are due to be
repaid or, as the case may be, expire on or before the proposed
Utilization Date relating to such Utilization;
"BARCLAYS OVERDRAFT AGENT" means Barclays Bank (Schweiz) AG, a company
incorporated in Switzerland;
"BASLE PAPER" means the paper entitled International Convergence of
Capital Measurement and Capital Standards dated July 1988 prepared by the
Basle Committee on Banking Regulations and Supervisory Practices. as
amended in November 1991;
"BORROWER SECESSION MEMORANDUM" means a memorandum delivered to the
Agent by the Borrowers pursuant to Clause 38 in the form set out in the
Sixth Schedule;
"CLOSING DATE" has the meaning given it in the Credit Agreement;
"COLLATERAL DOCUMENTS" has the meaning given it in the Credit
Agreement;
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name in the First
Schedule;
"COMMITMENT FEE" has the meaning given to it in Clause 25;
"COMMITMENT FEE PERCENTAGE" has the meaning given to it in the Credit
Agreement;
"CREDIT AGREEMENT" means the Second Amended and Restated Credit
Agreement of even date hereof between Nu-kote Holding, Inc. as guarantor,
Nu-kote International, Inc. as borrower, Barclays Bank PLC as documentation
agent, NationsBank of Texas, N.A. as administrative agent and collateral
agent and others;
"EVENT OF DEFAULT" means an "Event of Default" referred to in
Section 5 of the Nu-kote Guarantees;
"EXPIRY DATE" means, in relation to any Letter of Credit, the date on
which the maximum aggregate liability thereunder is to be reduced to zero;
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"FACILITY" means the revolving cash advances and letter of credit
facility granted to the Borrowers in this Agreement;
"FACILITY OFFICE" means, in relation to any of the Agent, the Fronting
Bank or the banks, the office identified with its signature below or such
other office as it may from time to time select which is located in the
same jurisdiction as the office identified with its signature below (or, in
the case of a Transferee as the office identified in the Transfer
Certificate pursuant to which it became a party hereto) or, such other
office as may be agreed pursuant to Clause 17;
"FINANCE DOCUMENTS" means this Agreement, the Nu-kote Guarantees, the
Collateral Documents, the Security Documents, the Hedging Documents and any
other document designated as such in writing by the Agent and the
Borrowers;
"GUARANTORS" means Nu-kote Holding, Inc., Nu-kote International, Inc.,
International Communication Materials, Inc., Future Graphics, Inc., Nu-kote
Imaging International, Inc. and Nu-kote Imperial, Ltd. and "GUARANTOR"
means any one of them;
"HEDGING DOCUMENTS" means any and all currency or interest rate swap
and/or interest cap and/or other hedging agreements entered into, or to be
entered into by a Borrower with a Bank in relation to the obligations of
such Borrower hereunder;
"INTELLECTUAL PROPERTY RIGHTS PLEDGE AGREEMENT" means the Intellectual
Property Rights Pledge Agreement dated 24th February, 1995 between Pelikan
Produktions AG and the Agent;
"INVENTORY PLEDGE AGREEMENT" means the Inventory Pledge Agreement
dated 24th February, 1995 between Pelikan Produktions AG and the Agent;
"L/C OUTSTANDINGS" means, at any time, the amount that is the sum of
(i) the maximum aggregate amount that is or at any time thereafter may
become available for drawings under each Letter of Credit outstanding at
such time and (ii) the aggregate amount of all drawings under each Letter
of Credit honored by the Fronting Bank and not theretofore reimbursed by
the Borrower hereunder;
"LENDERS" means the Banks and the Overdraft Provider;
"LETTER OF CREDIT" means a documentary or standby letter of credit
issued or to be issued by the Fronting Bank pursuant to Clause 7 in each
case, in such form as may be requested by a Borrower and which is
acceptable to the Fronting Bank;
"LIBOR" means, in relation to any Advance (other than a Short-Term
Advance) or unpaid sum, the rate per annum determined by the Agent to be
equal to the arithmetic mean (rounded upwards, if necessary, to four
decimal places) of the rates (as notified to the Agent) at which each of
the Reference Banks was offering to prime banks in the London Interbank
Market deposits in the currency of the relevant Advance and for the
specified period at or about 11:00 a.m. on the Quotation Date for such
specified period and, for the purposes of this definition, "SPECIFIED
PERIOD" means the Term of such Advance or, as the case may be, the relevant
period in respect of which LIBOR fails to be determined in relation to such
unpaid sum;
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"MANDATORY LIQUID ASSET COSTS RATE" means in relation to any Advance
or unpaid sum denominated in sterling, the rate determined in accordance
with the Seventh Schedule;
"MORTGAGE TRANSFER AGREEMENT" means the Mortgage Transfer Agreement
dated 24th February, 1995 between Pelikan Produktions AG and the Agent;
"NU-KOTE GUARANTEES" means the guarantees dated 24th February, 1995
given by the Guarantors in favor of the Agent for itself and on behalf of
the Lenders;
"OBLIGORS" means the Borrowers and the Guarantors and "OBLIGOR" means
any one of them;
"OPTIONAL CURRENCY" means dollars, deutschmarks and sterling;
"ORIGINAL SWISS FRANC AMOUNT" means:
(i) the principal amount (in the case of an Advance), or the
face value (in the case of a Letter of Credit), of a Utilization
denominated in Swiss francs; or
(ii) the principal amount (in the case of an Advance), or the
face value (in the case of a Letter of Credit), of a Utilization
denominated in an Optional Currency, translated into Swiss francs on
the basis of the Agent's Spot Rate of Exchange on the date of receipt
by the Agent of the Utilization Request for that Utilization;
"OUTSTANDINGS" means, at any time, the aggregate of:
(i) the principal amount of each outstanding Advance at such
time; and
(ii) the L/C Outstandings at such time;
"OVERDRAFT FACILITY TRANSFEREE" means a Lender to which the Overdraft
Provider transfers all (but not part) of its rights and obligations
hereunder as the Overdraft Provider in accordance with Clause 30.5;
"OVERDRAFT PROVIDER" means:
(i) Barclays Bank PLC in its capacity as overdraft provider
hereunder (and not, for the avoidance of doubt, Barclays Overdraft
Agent through which Barclays Bank PLC acts in connection with
Short-Term Advances) until the date, if any, that is 30 days after the
date Barclays Bank PLC notifies the Borrowers that no more Short-Term
Advances will be made by it; or
(ii) any other Lender that may, from time to time, be appointed
to act as the overdraft provider hereunder in accordance with Clause
30.5;
"OVERDRAFT PROVIDER TRANSFER CERTIFICATE" means a certificate
substantially in the form set out in the Eighth Schedule signed by the
Overdraft Provider and the Overdraft Facility Transferee whereby:
(i) the Overdraft Provider seeks to procure the transfer to the
Overdraft Facility Transferee of all (but not part) of the Overdraft
Provider's rights and obligations hereunder upon and subject to the
conditions set out in Clause 30.5; and
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(ii) the Overdraft Facility Transferee undertakes to perform all
(but not part) of the Overdraft Provider's obligations hereunder as a
result of delivery of such certificate to the Borrowers and the Agent
as is contemplated in Clause 30.5;
"OVERDRAFT RATE" means on any day the rate per annum notified by
Barclays Overdraft Agent (or if any other Lender is the Overdraft Provider,
such Overdraft Provider) to the Agent and the relevant Borrower as being
the rate per annum for or with effect from such day (including a margin of
2% per annum);
"OVERDRAFT REPAYMENT DATE" means, in relation to any Short-Term
Advance, the earlier of (1) the date falling five business days after
demand for repayment made to the relevant Borrower by the Overdraft
Provider and (2) the Termination Date;
"PELIKAN HARDCOPY INTERNATIONAL AG ASSIGNMENT AGREEMENT" means the
Assignment Agreement dated 24th February, 1995 between Pelikan Hardcopy
(International) AG and the Agent;
"PELIKAN PRODUKTIONS AG ASSIGNMENT AGREEMENT" means the Assignment
Agreement dated 24th February, 1995 between Pelikan Produktions AG and the
Agent;
"POTENTIAL EVENT OF DEFAULT" has the meaning given to it in the
Nu-kote Guarantees;
"PROPORTION" means, in relation to a Bank, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are then
zero, by its Commitment to the Total Commitments immediately prior to their
reduction to zero);
"QUALIFYING LENDER" means a person recognized as a bank pursuant to
Clause 232 of the Circular of the Swiss Federal Tax Authorities, dated 29
October 1992, regarding the tax treatment of syndicated loans, debt
certificate issues, promissory notes and subparticipations. Provided that
if that circular is amended or repealed, the Agent shall have power to
amend this definition in a manner consistent with such amendment or repeal
as soon as practically possible;
"QUOTATION DATE" means, in relation to any period for which an
interest rate is to be determined hereunder (other than a Short-Term
Advance), the day on which quotations would ordinarily be given by prime
banks in the London Interbank Market for deposits in the currency in
relation to which such rate is to be determined for delivery on the first
day of that period. Provided that, if for any such period quotations would
ordinarily be given on more than one date, the Quotation Date for that
period shall be the last of those dates;
"REFERENCE BANKS" means the principal London office of Barclays Bank
PLC or the principal London offices of other bank or banks as may from time
to time be agreed between the Borrowers and the Agent acting on the
instructions of the Requisite Lenders;
"REPAYMENT DATE" means, in relation to any Advance hereunder (other
than a Short-Term Advance), the last day of the Term thereof;
"REQUISITE LENDERS" has the meaning given to it in the Credit
Agreement;
"REQUESTED AMOUNT" means, in relation to any Utilization Request, the
aggregate principal amount of the Advances or, as the case may be, face
amount of the Letter of Credit therein requested;
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"SECURITY DOCUMENTS" means the Pelikan Produktions AG Assignment
Agreement, the Pelikan Hardcopy International AG Assignment Agreement, the
Intellectual Property Rights Pledge Agreement, the Inventory Pledge
Agreement, the Mortgage Transfer Agreement and the Share Pledge Agreement;
"SHARE PLEDGE AGREEMENT" means the Share Pledge Agreement dated 24th
February, 1995 between Pelikan Produktions AG and the Agent;
"SHORT-TERM ADVANCE" means any Advance denominated in Swiss francs
made by the Overdraft Provider in that capacity pursuant to the terms
hereof';
"TERM" means, save as otherwise provided herein, in relation to any
Advance hereunder (other than a Short-Term Advance), the period for which
such Advance is borrowed (as specified in the Utilization Request relating
thereto) and, in relation to any Letter of Credit, the period from the date
on which such Letter of Credit is issued until its Expiry Date (as
specified in the Utilization Request relating thereto);
"TERMINATION DATE" means January 4, 1999, or such earlier date on
which the Revolving Credit Commitments, under and as defined in the Credit
Agreement, shall terminate;
"TOTAL COMMITMENTS" means the aggregate for the time being of the
Banks' Commitments;
"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in the Second Schedule signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee
of all or a part of such Bank's rights and obligations hereunder upon
and subject to the terms and conditions set out in Clause 30; and
(ii) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to the
Borrowers and the Agent as is contemplated in Clause 30;
"TRANSFER DATE" means, in relation to any Transfer Certificate or
Overdraft Provider Transfer Certificate, the date for the making of the
transfer as specified in the schedule to such Transfer Certificate or
Overdraft Provider Transfer Certificate (as the case may be);
"TRANSFEREE" means a bank or other financial institution to which a
Bank transfers all or part of such Bank's rights and obligations hereunder
in accordance with Clause 30;
"UK FACILITY" means the third amended and restated revolving credit,
letter of credit and contract guarantee facility made available to Pelikan
Scotland Limited by Barclays Bank PLC and NationsBank, N.A. of even date
hereof;
"UTILIZATION" means a utilization of the Facility hereunder;
"UTILIZATION DATE" means the date of a Utilization, being the date on
which the Advances in respect thereof are to be made or the Letter of
Credit in respect thereof is to be issued; and
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"UTILIZATION REQUEST" means a notice given to the Agent pursuant to
Clause 6.1 substantially in the form set out in the Fourth Schedule.
1.2 Any reference in this Agreement to:
an "AFFILIATE" of the Agent shall be construed as a reference to a
subsidiary or holding company, or to a subsidiary of a holding company, of
the Agent;
the "AGENT", the "COLLATERAL AGENT" or any "LENDER" or any "OVERDRAFT
PROVIDER" shall be construed so as to include its and any subsequent
successors, Transferees, Overdraft Facility Transferees and permitted
assigns in accordance with their respective interests;
a "BUSINESS DAY" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks generally are open for business
in London and Zurich and (but only in relation to a transaction involving
an Optional Currency) the principal financial centre of the country of that
Optional Currency;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would otherwise
end on a day which is not a business day, it shall end on the next
succeeding business day, unless that day falls in the calendar month
succeeding that in which it would otherwise have ended, in which case it
shall end on the immediately preceding business day; provided that, if a
period starts on the last business day in a calendar month or if there is
no numerically corresponding day in the month in which that period ends,
that period shall end on the last business day in that later month (and
references to "MONTHS" shall be construed accordingly);
"TAX" shall be construed so as to include any tax, levy, impost, duty
or other charge of a similar nature (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same); and
"VAT" shall be construed as a reference to value added tax including
any similar tax which may he imposed in place thereof from time to time.
1.3 "CHF" and "SWISS FRANCS" denote the lawful currency of Switzerland,
"US$" and "DOLLARS" denote the lawful currency of the United States of
America, "DM" and "DEUTSCHMARKS" denote the lawful currency of the Federal
Republic of Germany and "L" and "STERLING" denote the lawful currency of the
United Kingdom.
1.4 Save where the contrary is indicated, any reference in this
Agreement to;
(i) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be, such
other agreement or document as the same may have been, or may front time to
time be, amended, restated, varied, novated or supplemented; and
(ii) a time of day shall be construed as a reference to London time.
1.5 There are set out in the Fifth Schedule timetables of certain of
the procedures provided for in this Agreement. For the purpose of
construction, any reference herein to a specified time shall be construed as
a reference to the relevant time set forth in the relevant timetable.
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2. THE FACILITY
2.1 The Lenders grant to the Borrowers, upon the terms and subject to
the conditions hereof, a revolving cash advance and letter of credit facility
in an aggregate Original Swiss Franc Amount of CHF 50,000,000.
2.2 Subject to Clause 2.1 above, the aggregate amount of all
Utilizations denominated in an Optional Currency outstanding at any time
shall not:
(i) in the case of Utilizations denominated in dollars, exceed
US$20,000,000;
(ii) in the case of Utilizations denominated in deutschmarks, exceed
DM30,000,000; and
(iii) in the case of Utilizations denominated in sterling, exceed
L15,000,000.
2.3 Notwithstanding Clause 2.2 above, that part of the Facility
comprising Letters of Credit is limited to an Original Swiss Franc Amount of
CHF 12,000,000.
2.4 That part of the Facility comprising Short-Term Advances will be
provided by the Overdraft Provider and is limited to CHF 6,250,000.
3. PURPOSE
3.1 The Facility is intended to be used for general corporate purposes
including. but not limited to:
(i) working capital;
(ii) capital and other expenditures and expenses; and
(iii) refinancing existing indebtedness and other indebtedness,
including reimbursement to the Fronting Bank of any amounts drawn under any
Letters of Credit;
and, accordingly, each Borrower shall apply all amounts raised by it
hereunder in or toward satisfaction of such purposes.
3.2 Without prejudice to the obligations of the Borrowers under Clause
3.1, the Agents and the Lenders shall not be obliged to concern themselves
with the application of amounts raised by a Borrower hereunder.
3.3 During the period while Barclays Bank PLC is the Overdraft
Provider, Barclays Bank PLC shall cause Barclays Overdraft Agent to act as
its agent in relation to Short-Term Advances made to the Borrower by Barclays
Bank PLC as Overdraft Provider.
4. CONDITIONS PRECEDENT
(a) Neither Borrower may utilize the Facility unless the Agent has
confirmed to the Borrowers and the Lenders that it has received all of the
documents listed in the Third Schedule and that each is, in form and
substance, satisfactory to the Agent.
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(b) By signing this Agreement, each of Pelikan Produktions AG and
Pelikan Hardcopy (International) AG, in their capacities as pledgors and
assignors under the Security Documents, acknowledge and agree that their
obligations under the Security Documents remain fully applicable and extend
to cover all of the obligations owed by each of them in their capacities as
borrowers (and, in the case of Pelikan Produktions AG, as the Swiss
Guarantor) under this Agreement.
5. NATURE OF LENDERS' OBLIGATIONS
5.1 The obligations of each Lender hereunder are several.
5.2 The failure by a Lender to perform its obligations hereunder shall
not affect the obligations of any other Lender or a Borrower towards any
other party hereto nor shall any other party be liable for the failure by
such Lender to perform its obligations hereunder.
6. UTILIZATION OF THE FACILITY
6.1 Save as otherwise provided herein. Advances will be made by the
Banks or, as the case may be, a Letter of Credit will be issued by the
Fronting Bank or, as the case may be, Short-Term Advances will be made by the
Overdraft Provider to a Borrower if:
(i) no later than the specified time in respect of the proposed
Utilization, the Agent or, in the case of a Short-Term Advance, the
Overdraft Provider, has received from the relevant Borrower a Utilization
Request therefor;
(ii) the proposed Utilization Date in respect to such Utilization
Request is a business day;
(iii) the Requested Amount is:
(a) in the case of a Utilization by means of Advances (other
than Short-Term Advances), an amount which does not exceed the
Available Facility at such time and which, if less than the Available
Facility at such time;
(1) if no other Advance (other than a Short-Term Advance)
of less than an Original Swiss Amount of CHF 2,000,000 is
outstanding at such time is:
(A) if the currency is Swiss Francs, a minimum amount
of CHF 1,000,000 and in additional integral multiples of CHF
2,000,000; or
(B) if the currency is an Optional Currency, a minimum
Original Swiss Franc Amount of CHF 1,000,000 (or an
approximate amount thereof) and in additional integral
multiples of an Original Swiss Franc Amount of CHF 2,000,000
(or as approximate amount thereof); or
(2) if an Advance (other than a Short-Term Advance) of less
than CHF 2,000,000 is outstanding at such time is:
(A) if the currency is Swiss francs, a minimum amount
of CHF 2,500,000 and in additional integral multiples of CHF
1,000,000;
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or
(B) if the currency is an Optional Currency, a minimum
Original Swiss Franc Amount of CHF 2,500,000 (or an
approximate amount thereof) and in additional integral
multiples of an Original Swiss France Amount of CHF
1,000,000 (or an approximate amount thereof); or
(b) in the case of a Utilization by means of a Letter of Credit,
an amount which does not exceed the Available Facility at such time
and which when aggregated with the L/C Outstandings at the time of
such Utilization does not exceed an Original Swiss Franc Amount of
CHF 12,000,000; or
(c) in the case of a Utilization by means of Short-Term
Advances, an amount which does not exceed the Available Facility at
such time and which when aggregated with all other Short-Term Advances
then outstanding, does not exceed CHF 6,250,000;
(iv) in the case of a Utilization to be denominated in an Optional
Currency, its principal amount (in the case of an Advance) or face value
(in the case of a Letter of Credit), when aggregated with the aggregate
principal amounts and/or face values, as the case may be, of all
outstanding Utilizations denominated in the same Optional Currency, would
not exceed the limits set out in Clause 2.2; and
(v) the Term requested by the relevant Borrower in such Utilization
Request for any Advance (other than Short-Term Advances) will end on a
business day which is or precedes the Termination Date and will be:
(a) in respect of any such Advance with a proposed Utilization
Date falling during the period expiring on the earlier of the date
that is two (2) months after the Closing Date, a period not exceeding
14 days.
(b) in respect of any such Advance to which Clause 6.1(v)(a)
does not apply, a period of one, three or six months;
(c) in respect of a Letter of Credit;
(1) if denominated in Swiss Francs, any period of 18 months
or less; or
(2) if denominated in an Optional Currency, any period of
twelve months or less;
(d) in respect of a Short-Term Advance, any period of one month
or less; and
(vi) the making of such Advance (other than a Short-Term Advance) will
not result in there being more than 5 outstanding Advances (other than
Short-Term Advances); and
(vii) in the case of a Utilization by means of a Short-Term
Advance, there is an Overdraft Provider.
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6.2 If and whenever, on the occasion of a Utilization, the Banks are
required to make Advances or the Fronting Bank is required to issue a Letter
of Credit pursuant hereto, the aggregate principal amount of the Advances to
be so made or, as the case may be, the face amount of the Letter of Credit to
be so issued shall be allocated to, and apportioned among, the Banks rateably
to their respective Available Commitments for such Utilization. Provided
that no amount shall be allocated to any Bank in respect of any Utilization
if such Bank's Commitment will be cancelled pursuant to the terms hereof
prior to or during the Term of the proposed Advances or, as the case may be,
the Term of the proposed Letter of Credit.
6.3 Each Bank shall, subject to the terms hereof, be obliged, through
its Facility Office, to make an Advance on the proposed Utilization Date
in a principal amount equal to the amount allocated to it pursuant to this
Clause 6.
6.4 The Agent shall not later than the specified time notify each Bank
by telephone of the principal amount or, as the case may be, the amount
allocated to it pursuant to this Clause 6, such notice to be promptly
confirmed by the Agent by telex or telefax.
6.5 The Overdraft Provider may at any time request by notice to a
Borrower (through the Agent) which at such time has an outstanding Short-Term
Advance made by such Overdraft Provider that the Banks make an Advance to
such Borrower on a business day specified by the Overdraft Provider in such
notice (such date falling no earlier than five business days after receipt of
such notice) and upon receiving such notice such Borrower shall, unless such
outstanding Short-Term Advance has been repaid within three business days of
receipt of such notice, be deemed to have served a Utilization Request for an
Advance to be made by the Banks in an amount equal to, and in the same
currency as, such outstanding Short-Term Advance on such business date
specified by the Overdraft Provider for a Term of one month whereupon,
notwithstanding the provisions of Clause 6.1(iii) or (v) or the conditions to
making an Advance contained in Clause 10 or any cancellation of the Available
Facility following the making of such Short-Term Advance, the Banks shall
make such Advance available to such Borrower rateably to their respective
Available Commitments at such time (or immediately prior to any such
cancellation) and interest on such Advance shall be determined in accordance
with Clause 11.2 and the Agent is hereby authorized to pay the proceeds of
such Advance to the Overdraft Provider on behalf of the relevant Borrower to
be applied in discharge of such outstanding Short-Term Advance.
6.6 For the avoidance of any doubt, since the definition of Commitment
only applies to Banks and not the Overdraft Provider or the Fronting Bank,
any Bank that is also an Overdraft Provider or Fronting Bank may be obliged
to have Outstandings that, including its Advances as a Bank, its Short-Term
Advances as Overdraft Provider and its L/C Outstandings as Fronting Bank,
exceed the amount of its Commitment and any such Bank, in its capacity as
Overdraft Provider and Fronting Bank, has the benefit of the Banks'
obligations under Clauses 6.5 and 8.6 in respect of its Short-Term Advances
and L/C Outstandings as Fronting Bank.
7. ISSUE OF LETTERS OF CREDIT
7.1 Each Utilization Request in respect of a Letter of Credit shall, in
addition to the information required pursuant to Clause 6.1, specify the name
and address of the recipient to which the relevant Letter of Credit should be
delivered and shall have the proposed form of the Letter of Credit attached
to it.
7.2 Subject to the provisions hereof, the Fronting Bank shall issue a
Letter of Credit in accordance with Clause 7.1 if:
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(i) no Event of Default or Potential Event of Default has occurred
which is continuing;
(ii) the representations and warranties set out in Section 3 of the
Nu-kote Guarantees are true in all material respects on and as of such
Utilization Date to the same extent as though made on and as of such
Utilization Date, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case, such
representations and warranties shall have been true and correct in all
material respects as of such earlier date; and
(iii) the form of the Letter of Credit has been agreed between the
relevant Borrower and the Fronting Bank by no later than the specified
time.
8. INDEMNITY (INCLUDING BANK INDEMNITY FOR SHORT-TERM ADVANCES)
8.1 If, at any time, a demand for payment in the amount so demanded
(being herein referred to as the "AMOUNT DEMANDED") is made under a Letter of
Credit by the beneficiary thereof, the Agent shall notify the relevant
Borrower of such demand and make demand of that Borrower for an amount equal
to the Amount Demanded.
8.2 A Borrower shall pay to the Agent an amount equal to the Amount
Demanded following receipt by it of a demand made on it by the Agent under
this Clause 8. Such payment shall be made on the second business day
following the business day on which such Borrower receives such demand from
the Agent, or, in the event that the Borrower receives such demand after 9:00
a.m. on such business day, on the third business day following.
8.3 Each Borrower hereby irrevocably and unconditionally agrees to
indemnify and keep indemnified the Fronting Bank against each and every sum
paid or payable by the Fronting Bank under any Letter of Credit issued at its
request and also undertakes to indemnify and hold harmless the Fronting Bank
on demand from and against all actions, proceedings, liabilities, costs
(including, without limitation, any costs incurred in funding any amount
which falls due from the Fronting Bank under any Letter of Credit in
connection with any such Letter of Credit as certified by the Fronting Bank
to the relevant Borrower), claims, losses, damages and expenses which the
Fronting Bank may at any time incur or sustain in connection with or arising
out of any Letter of Credit issued at its request. Provided that a Borrower
shall not be obliged to pay any amount under this Clause 8.3 to the extent
that such obligation has arisen as a result of (i) the fraud, gross
negligence or wilful misconduct of the Fronting Bank or (ii) the failure by
the Fronting Bank to use reasonable care to determine that the documents and
certificates required to be delivered under any Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Letter of Credit before making any payment thereunder.
8.4 The Fronting Bank shall be entitled to make any payment under any
Letter of Credit for which a demand has been made without any reference to or
further authority from the Borrower at whose request such Letter of Credit
was issued or any other investigation or enquiry, need not concern itself
with the propriety of any demand made or purported to be made under and in
the manner required by the terms of any such Letter of Credit and shall be
entitled to assume that any person expressed in any Letter of Credit or in
any notice served pursuant to any such Letter of Credit to be entitled to
make demands is so entitled and that any individual purporting to sign any
such demand or notice on behalf of such person is duly authorized to do so
unless it has actual knowledge that such person is not so entitled or not so
authorized; accordingly, it shall not (save as provided in this Clause 8) be
a defense to any demand made of a Borrower, nor shall a Borrower's
obligations
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hereunder be impaired by the fact (if it be the case), that the Fronting Bank
was or might have been justified in refusing payment, in whole or in part, of
the amounts so demanded. Provided that the Fronting Bank shall use
reasonable care to determine that the documents and certificates required to
be delivered under any Letter of Credit have been delivered and that they
comply on their face with the requirements of that Letter of Credit before
making any payment thereunder.
8.5 Save as otherwise provided in this Clause 8, the obligations of
each Borrower to the Fronting Bank in connection with any such Letter of
Credit shall not be discharged, lessened or impaired by any act, omission or
circumstance whatsoever which, but for this provision, might operate to
release or exonerate such Borrower from all or part of such obligations or in
any other way discharge, lessen or impair the same.
8.6 Each Bank hereby irrevocably and unconditionally agrees to
indemnify and keep indemnified the Fronting Bank and the Overdraft Provider
on demand and in its Proportion against each and every sum payable hereunder
by either Borrower to the Fronting Bank and the Overdraft Provider in respect
of a Letter of Credit or Short-Term Advance but which is not paid on the due
date therefor.
9. LETTER OF CREDIT COMMISSIONS AND FEES
Each Borrower agrees to pay the following amounts with respect to each
Letter of Credit issued by the Fronting Bank hereunder at its request;
(i) (a) in respect of each documentary Letter of Credit with a
term (on issue thereof) of less than one year, a commission of 0.625% per
annum on the weighted average maximum amount available from time to time to
be drawn under such Letter of Credit. Such commission shall be paid to the
Agent for the account of each Bank and for distribution by the Agent to
each Bank in proportion to each Bank's allocation pursuant to Clause 6.2 in
arrear on and to (but excluding) each 31st March, 30th June, 30th September
and 31st December in each year during the term thereof and on the Expiry
Date thereof, the first such payment to be made on 31st March, 1995 in
respect of any documentary Letter of Credit issued prior to such date;
(b) in respect of each documentary Letter of Credit with a
term (on issue thereof) of one year or more and each standby Letter of
Credit, a commission equal to the product of (A) the weighted average
Applicable Margin applicable to the Advances (other than Short-Term
Advances) outstanding hereunder during the period of calculation
multiplied by (B) the weighted average maximum amount available from
time to time to be drawn during such period under such Letter of
Credit. Such commission shall be paid to the Agent for the account of
each Bank and for distribution by the Agent to each Bank in proportion
to each Bank's allocation pursuant to Clause 6.2 in arrear on and to
(but excluding) each 31st March, 30th June, 30th September and
31st December in each year during the term thereof and on the Expiry
Date thereof, the first such payment to be made on 31st March, 1995;
(ii) a fronting fee, for the account of the Fronting Bank, of 0.20%
per annum on the face amount of such Letter of Credit in arrear on and
to (but excluding) each 31st March, 30th June, 30th September and
31st December in each year during the term thereof and on the Expiry Date
thereof, the first such payment to be made on 31st March, 1995 in respect
of any such Letter of Credit issued prior to such date; and
(iii) with respect to the issuance, any amendment and any transfer
thereof and each drawing thereunder, in each case reasonable documentary
and processing charges in
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accordance with the Fronting Bank's standard schedule for such charges in
effect at the date of issue or the relevant amendment, transfer or drawing
(as the case may be) of the relevant Letter of Credit.
10. MAKING OF ADVANCES
10.1 If any Bank or the Overdraft Provider has been requested to make any
Advance in accordance with the provisions hereof, and if on the proposed
Utilization Date relating to such an Advance;
(i) no Event of Default or Potential Event of Default has occurred
which is continuing; and
(ii) the representations and warranties set out in Section 3 of the
Nu-kote Guarantees arc true in all material respects on and as of such
Utilization Date to the same extent as though made on and as of such
Utilization Date, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case, such
representations and warranties shall have been true and correct in all
material respects as of such earlier date;
then, on such Utilization Date, such Bank or the Overdraft Provider (as the
case may be) shall save as otherwise provided herein, make such Advance
(through its Facility Office in the case of such Bank and if Barclays Bank
PLC is the Overdraft Provider, through Barclays Overdraft Agent in the case
of Short-Term Advances) to the relevant Borrower in accordance with the
provisions of Clause 22. Advances made hereunder shall not be represented by
notes or other instruments evidencing indebtedness.
10.2 If, before 9.00 a.m. on the Utilization Date of an Advance to be
denominated in an Optional Currency, the Agent receives notice from a Lender
that;
(i) it is impracticable for the affected Lender to fund its
participation in such Advance for its Term in that Optional Currency in the
ordinary course of business in the London interbank market; or
(ii) the use of the proposed Optional Currency might contravene any
law or regulation relevant to the affected Lender;
then the Agent shall promptly notify the relevant Borrower and that Advance
shall not be made.
10.3 The Agent shall notify each relevant Party of any applicable
Agent's Spot Rate of Exchange or Original Swiss Franc Amount as soon as
practicable after it is ascertained.
11. INTEREST
11.1 On the last business day of each month and on the Repayment Date
relating to each Advance (other than a Short-Term Advance) made to it the
relevant Borrower shall pay accrued interest on that Advance.
11.2 On the earlier of:
(i) the last business day of each month; and
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(ii) the Overdraft Repayment Date, the relevant Borrower shall pay
accrued interest on any Short Term Advance made to it.
11.3 The rate of interest applicable to an Advance (other than a
Short-Term Advance) made by a Bank during the Term of such Advance shall be
the rate per annum determined by the Agent to be the sum of:
(i) LIBOR on the Quotation Date for such Advance;
(ii) the Applicable Margin; and
(iii) (in the case of an Advance denominated in sterling) the
Mandatory Liquid Asset Costs Rate in respect thereof.
11.4 The rate of interest applicable to a Short-Term Advance shall be
the Overdraft Rate.
11.5 The Agent shall promptly notify the Borrowers and the relevant
Banks of each determination of an interest rate made by it pursuant to this
Clause 11.
12. REPAYMENT OF ADVANCES
12.1 Each Borrower shall repay each Advance (other than a Short-Term
Advance) made to it in full on the Repayment Date relating thereto.
12.2 Each Borrower shall repay each Short-Term Advance made to it in
full on or before the Overdraft Repayment Date.
12.3 Neither Borrower shall repay all or any part of any Advance
outstanding hereunder except at the times and in the manner expressly
provided herein.
13. CANCELLATION
13.1 The Borrowers may, by giving to the Agent not less than three
business days' prior notice to that effect, cancel the whole or any part
(being a minimum amount of CHF 2,500,000 and in additional integral multiples
of CHF 1,000,000) of the Available Facility. Any such cancellation shall
reduce the Commitment of each Bank rateably.
13.2 Any notice of cancellation given by the Borrowers pursuant to
Clause 13.1 shall be irrevocable and shall specify the date upon which such
cancellation is to be made and the amount of such cancellation.
13.3 If (i) a Borrower is required to make any additional payment to a
Lender pursuant to Clauses 14 or 18.2 or (ii) any Lender claims
indemnification under Clauses 15.1 or 15.2, the Borrowers may, within thirty
days thereafter and by not less than fifteen days' prior notice to the Agent
(which notice shall be irrevocable), cancel all or any part of such Lender's
Commitment whereupon on the date specified in such notice its Commitment
shall be reduced by the amount so cancelled.
13.4 If the Borrowers give notice of cancellation pursuant to Clause
13.3, they may at the same time as such notice expires repay each outstanding
Advance (or, as the case may be, the relevant proportion thereof) of the
relevant Lender together with accrued interest thereon and may procure that
such Lender's liability under all outstanding Letters of Credit (or, as the
case may be, the relevant proportion thereof) will be secured in a manner
acceptable to such Lender, it being understood that in
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no event shall any Letter of Credit or the obligations of the Fronting Bank
thereunder be cancelled, and security equal to, and in the same currency as,
the maximum amount that can be drawn under each outstanding Letter of Credit
issued by the Fronting Bank shall be acceptable to the Fronting Bank.
13.5 If on or after July 31, 1997, Nu-kote International, Inc. gives
notice in accordance with the Credit Agreement to cancel the whole or any
part of a Bank's commitment under the Credit Agreement, the Borrowers shall,
at the same time, give notice in accordance with Clause 13.1 to cancel the
whole or a proportion equal to the proportion to be cancelled under the
Credit Agreement, of such Bank's Commitment hereunder. If the Borrowers fail
to give such a notice in accordance with Clause 13.1, the notice given in
accordance with the Credit Agreement shall be deemed to be a notice under
Clause 13, MUTATIS MUTANDIS. Requisite Lenders hereby waive compliance with
this Section 13.5 with respect to reductions occurring on the Closing Date.
14. TAXES
14.1 All payments to be made by a Borrower to the Agent, any Lender or
the Fronting Bank hereunder shall be made free and clear of and without
deduction for or on account of tax unless such Borrower is required to make
such a payment subject to the deduction or withholding of tax, in which case
the relevant Borrower shall promptly upon becoming aware thereof notify the
Agent thereof and the relevant Borrower shall pay to the relevant taxing or
other governmental authority the full amount required to be deducted or
withheld (including the full amount required to be deducted or withheld from
any additional amount paid by such Borrower pursuant to the succeeding
sentence) promptly upon becoming aware of the same. If such deduction or
withholding is required, the sum payable by the relevant Borrower in respect
of which such deduction or withholding is required to be made shall be
increased to the extent necessary to ensure that, after the making of the
required deduction or withholding, the Agent, such Lender or, as the case may
be, the Fronting Bank receives and retains (free from any liability in
respect of any such deduction or withholding) a net sum equal to the sum
which it would have received and so retained had no such deduction or
withholding been made or required to be made provided that the relevant
Borrower shall not be required to make any additional payment to any Lender
pursuant to this Clause 14.1 if:
(i) the law, regulation or other administrative circular requiring
such deduction or withholding was in existence on 24th February, 1995;
(ii) the requirement to deduct or withhold arises as a result of such
Lender not being at the time it becomes a party to this Agreement or having
ceased to be a Qualifying Lender;
(iii) the requirement to deduct or withhold could have been avoided or
reduced as a result of such Lender complying with any obligation it may
have to provide documentation in accordance with Clause 17.1; or
(iv) the requirement to deduct or withhold would not have arisen but
for a transfer or assignment or participation in breach of Clause 30.
14.2 If a Lender shall become aware that it is eligible for a refund in
respect of any taxes actually paid by a Borrower pursuant to Clause 14.1
hereof, it shall promptly notify the relevant Borrower of the availability of
such refund and shall, within 30 days after receipt of a request by the
relevant Borrower, apply for such refund or shall furnish to the relevant
Borrower such forms, duly completed, as will enable that Borrower to claim
such refund on its own behalf. The relevant Borrower shall reimburse such
Lender for all costs reasonably incurred by it in applying for and seeking
such refund. If any Lender determines that it has received a refund in
respect of any taxes paid by a
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Borrower pursuant to Clause 14.1 hereof, it shall repay such refund within 30
days after receipt to the relevant Borrower to the extent of amounts not in
excess of the amounts actually paid by such Borrower and not previously
reimbursed in respect of the taxes giving rise to such refund net of all
out-of-pocket expenses reasonably incurred by such Lender not previously
reimbursed and without interest (other than interest received from the
relevant taxing authority with respect to such refund). The relevant
Borrower, upon request of the relevant Lender, agrees to return to such
Lender the amount paid to it by the applicable Lender with respect to such
refund (plus applicable penalties, interest or other charges) in the event
that such Lender is required to repay such refund. In addition the Agent and
each Lender shall reasonably cooperate with a Borrower, at that Borrower's
expense, in contesting any taxes that such Borrower is required to bear
pursuant to Clause 14.1 hereof and shall pay to such Borrower, on a net after
tax basis, any refunds obtained as a result of such contest, together with
any interest thereon, within 30 days of receipt. Nothing in this Clause 14.2
shall interfere with the right of any person to arrange its tax affairs in
whatever manner it thinks fit nor oblige any person to disclose any
information relating to its tax affairs or any computations in respect
thereof to any other person.
15. INCREASED COSTS
15.1 If, after 24th February, 1995 by reason of, (i) the introduction of
or any change (including, without limitation, any change by way of imposition
or increase of tax or reserve requirements) in or in the official
interpretation of any law or regulation by the authority charged with the
administration or interpretation thereof, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law) but being a
guideline or request with which banks are generally accustomed to comply;
(i) a Lender incurs a cost as a result of such Lender's having
entered into and/or performing its obligations under this Agreement
and/or assuming or maintaining a commitment under this Agreement and/or
participating in one or more Advances and/or one or more Letters of Credit
hereunder;
(ii) there is an increase in the cost to a Lender of funding or
maintaining its participation in (a) all or any of the advances comprised
in a class of advances formed by or including the Advances made or to be
made hereunder and/or (b) all or any of the letters of credit comprised in
a class of letters of' credit formed by or including the Letters of Credit
made or to be made hereunder; or
(iii) a Lender becomes liable to make any payment on account of tax or
otherwise (not being a tax imposed on or measured by the net income or
capital of such Lender's Facility Office by the jurisdiction in which it is
incorporated or in which it or its Facility Office is located or centrally
managed or controlled) on or calculated by reference to the amount of such
Lender's participation in the Advances made or to be made hereunder and/or
any Letter of Credit issued or to be issued hereunder and/or to any sum
received or receivable by it hereunder,
then the relevant Lender shall, through the Agent, notify Pelikan Produktions
AG of such cost, such increased cost or, as the case may be, such liability
within 30 days of becoming aware of the same, demanding indemnification in
respect thereof and upon receipt of such notice and demand, Pelikan
Produktions AG shall pay to the Agent for the account of that Lender, within
five business days after receipt of such notice and demand, additional
amounts sufficient to indemnify that Lender against such cost, such increased
cost or such liability. A certificate in reasonable detail as to the amount
of such cost, increased cost or such liability submitted to the Borrowers and
the Agent by that Lender, shall,
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except for manifest error, be final, conclusive and binding for all purposes.
15.2 In the event that any Lender shall have reasonably determined that
the adoption or implementation after 24th February, 1995 of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy (other than (i) the terms, proposals and
recommendations contained in the Basle Paper or (ii) any other rule,
regulation, guideline or order regarding capital adequacy in effect on 24th
February, 1995 affecting such Lender), including without limitation, a
request or requirement (but being a request or requirement with which banks
are generally accustomed to comply) which affects the manner in which a
Lender is required to or does maintain capital resources having regard to
such Lender's obligations hereunder and to amounts owing to it hereunder or
any change therein or in the interpretation or application thereof or
compliance by any Lender with any request or directive regarding capital
adequacy (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful but if not having the force of law,
being a request or directive with which banks are generally accustomed to
comply and in any event excluding the terms, proposals and recommendations
contained in the Basle Paper or any other rule, regulation, guideline or
order regarding capital adequacy in effect on 24th February, 1995 affecting
such Lender) from any central bank or governmental agency or body having
jurisdiction, has the effect of increasing the amount of capital required to
be maintained by such Lender and thereby reducing the rate of return on such
Lender's overall capital as a consequence of such Lender's obligations
hereunder to a level below that which such Lender would have achieved but for
the occurrence of such circumstances, then the relevant Lender shall, through
the Agent, notify Pelikan Produktions AG of such event within 30 days of
becoming aware of the same demanding indemnification in respect thereof and
including in such notification and demand a certificate stating (a) that one
of the events described in this Clause 15.2 has occurred and describing in
reasonable detail the nature of such event, (b) the amount of the reduction
in the rate of return on such Lender's capital reasonably determined by such
Lender to be allocable to the existence of such Lender's obligations
hereunder and (c) setting forth in reasonable detail the manner of
calculation of the reduction in the rate of return on such Lender's capital
and such allocated amount thereof and Pelikan Produktions AG shall upon
receipt of such notice and demand pay to the Agent, for the account of such
Lender, additional amounts sufficient to compensate such Lender for such
reduction. A certificate as to the amount of such compensation, submitted to
the Borrowers and the Agent by such Lender shall, in the absence of manifest
error, be final, conclusive and binding for all purposes. In determining
such amount, a Lender may use any reasonable averaging and attribution
method. Nothing in this Clause 15.2 is intended to provide to the Borrowers
the right to inspect the records, files or books of any Lender.
15.3 Pelikan Produktions AG shall not be required to pay any amounts
pursuant to Clauses 15.1 or 15.2;
(i) to the extent that such amounts are recovered under Clause 14,
Clause 18 or any other sub-clause of Clause 15;
(ii) to the extent that such cost, increased cost or liability would
not have arisen but for a transfer or assignment in breach of Clause 30;
(iii) unless the relevant Lender has delivered a notice and demand in
the manner required by Clause 15.1 or, as the case may be, Clause 15.2 and
such certificates as are referred to in Clause 5.1 or, as the case may be,
15.2; or
(iv) to the extent that such cost, increased cost or liability has
already been compensated for by the application of the Mandatory Liquid
Asset Costs Rate.
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16. ILLEGALITY
If, at any time after 24th February, 1995 it is unlawful for a Lender to
make, fund or allow to remain outstanding all or any of the Advances made or
to be made by it hereunder then that Lender shall, promptly after becoming
aware of the same, deliver to Pelikan Produktions AG through the Agent a
certificate to that effect and, unless such illegality is avoided in
accordance with Clause 17 or Clause 38 taking into account any grace period
allowed by any such order, request or requirement:
(i) such Lender shall not thereafter he obliged to make any Advances
and the amount of its Commitment shall be immediately reduced to zero; and
(ii) if the Agent on behalf of such Lender so requires, Pelikan
Produktions AG shall on such date as the Agent shall have specified;
(a) repay each outstanding Advance together with accrued
interest thereon and all other amounts owing to such Lender; and/or
(b) procure that such Lender's obligations under any Letters of
Credit will be secured in a manner acceptable to such Lender, it being
understood that in no event shall any Letter of Credit or the
obligations of the Fronting Bank thereunder be cancelled, and security
in Swiss francs equal to the maximum amount that can be drawn under
each Letter of Credit outstanding at such time shall be acceptable to
the Fronting Bank.
17. MITIGATION
17.1 If, in respect of any Lender, circumstances arise which would or would
upon the giving of notice result in;
(i) the reduction of its Commitment to zero pursuant to
Clause 16(i);
(ii) an increase in the amount of any payment to be made to it or for
its account pursuant to Clause 14 or Clause 18.2; or
(iii) a claim for indemnification pursuant to Clause 15.1 or 15.2,
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Lender or the obligations of the Borrowers under any of the
Clauses referred to in (i), (ii) or (iii) above such Lender shall promptly
upon becoming aware of the same notify the Agent thereof and, in consultation
with the Agent and the Borrowers to the extent that it can do so without
prejudice to its own position, take such steps as it determines are available
to it (acting reasonably) to mitigate the effects of such circumstances at
the request and expense of Pelikan Produktions AG including (i) the transfer
of its Facility Office; (ii) (subject to Clause 30) the transfer of its
rights and obligations hereunder to another financial institution acceptable
to the Borrowers and willing to participate in the Facility; and/or (iii)
within 30 days of becoming aware of the same, the execution and delivery to
the relevant authorities (and/or the Borrowers) of any documentation
necessary to secure the benefit of any applicable double taxation treaty or
any relevant domestic law which would operate to mitigate any of the
circumstances referred to above. Provided that such Lender shall be under no
obligation to take any such action if, in the reasonable opinion of such
Lender, to do so might have any adverse effect upon its business. operations
or financial condition.
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17.2 The Borrowers hereby agree to pay all expenses reasonably incurred
by any Lender in taking steps to mitigate the effects of circumstances giving
rise to any of the matters referred to in Clause 17.1(i), (ii) and (iii) by
transferring its Facility Office pursuant to Clause 17.1 to the extent that
such expenses would not have occurred but for such transfer.
18. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
18.1 If, in relation to any Utilization by way of Advances (other than a
Short Term Advance), the Agent determines that at or about 11.00 a.m. on the
Quotation Date for the Term in respect of such Advances none of the Reference
Banks was offering to prime banks in the London Interbank Market deposits in
the relevant currency for the proposed duration of such Term, then,
notwithstanding such failure to offer deposits in that currency:
(i) the Agent shall notify the other parties hereto of such event;
(ii) such Advances shall, nevertheless, be made and the amount of
interest payable in respect of any such Advance during its Term shall be
determined in accordance with the following provisions of this Clause 18;
and
(iii) if the Agent so requires, within five days of such notification
the Agent and the relevant Borrower shall enter into negotiations with a
view to agreeing upon a substitute basis for determining the rates of
interest which may be applicable to such Advances and Advances in the
future and any such substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto. Provided
that the Agent may not agree any such substitute basis without the prior
written consent of each Bank.
18.2 If no substitute basis is agreed upon within 10 business days
pursuant to Clause 18.1(iii) in respect of such Advances, any such Advance
made by a Bank pursuant to Clause 18.1(ii) shall bear interest during its
Term at the rate per annum equal to the sum of the Applicable Margin at such
time, the Mandatory Liquid Assets Costs Rate (if applicable) and the cost to
such Bank (as certified by it in good faith to the Agent with a copy to the
Borrowers and expressed as a rate per annum) of funding such Advance from
whatever sources it may reasonably select.
19. ACCELERATION EVENT
If one or more Events of Default shall have occurred then at any time
thereafter and so long as the Event of Default in question is continuing
unremedied or unwaived, the Agent (if so instructed by the Requisite Lenders)
shall:
(i) cancel the Commitments whereupon the same shall be so cancelled
and reduced to zero; and/or
(ii) declare any outstanding Advances to be immediately due and
payable, whereupon the same shall become so due and payable, together with
accrued interest thereon and all other sums due hereunder forthwith; and/or
(iii) require each Borrower to provide security in respect of each
Letter of Credit issued at its request in a manner acceptable to the
Fronting Bank in the currency of each such Letter of Credit, it being
understood that in no event shall any Letter of Credit or the obligations
of the Fronting Bank thereunder be cancelled and security equal to, and in
the same currency as, the maximum amount that can be drawn under each
Letter of Credit outstanding at such time shall be acceptable to the
Fronting Bank.
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20. DEFAULT INTEREST AND INDEMNITIES
20.1 If any amount of principal, Commitment Fee, or interest due and
payable by a Borrower hereunder is not paid on the due date therefor, a
Borrower does not reimburse the Fronting Lender for any drawing under a
Letter of Credit hereunder on the due date therefor, any fees (other than the
Commitment Fee) and other amounts payable by a Borrower hereunder are not
paid within ten days of the due date therefor, or if any sum due and payable
by a Borrower under any judgment of any court in connection herewith is not
paid in accordance with the requirements of such judgment, the period
beginning on such due date or, as the case may be, the date required by such
judgment and ending on the date upon which the obligation of the relevant
Borrower to pay such sum (the balance thereof for the time being unpaid being
herein referred to as an "UNPAID SUM") is discharged shall be divided into
successive periods, each of which (other than the first) shall start on the
last day of the preceding such period and the duration of each of which shall
(except as otherwise provided in this Clause 20) be reasonably selected by
the Agent.
20.2 During each such period relating thereto as is mentioned in Clause
20.1 an unpaid sum shall bear interest at the rate per annum which is the sum
from time to time of two percent, the Applicable Margin at such time, the
Mandatory Liquid Asset Costs Rate Formula (if applicable) and LIBOR on the
Quotation Date therefor. Provided that;
(i) if, for any such period, LIBOR cannot be determined, the rate
of interest applicable to such unpaid sum in respect of the Agent or any
Lender shall be the sum from time to time of two percent, the Applicable
Margin at such time, the Mandatory Liquid Asset Costs Rate Formula (if
applicable) and the rate per annum notified to the Agent by such person (as
certified by it in good faith to the relevant Borrower with a copy to the
Agent) to be that which expresses as a percentage rate per annum the cost
to such person of funding from whatever sources it may reasonably select
its portion of such unpaid sum for such period; and
(ii) if such unpaid sum is all or part of an Advance which became due
and payable on a day other than the last day of the Term thereof, the first
such period applicable thereto shall be of a duration equal to the
unexpired portion of that Term and the rate of interest applicable thereto
from time to time during such period shall be that which exceeds by one
percent the rate which would have been applicable to it had it not so
fallen due.
20.3 Any interest which shall have accrued under Clause 20.2 in respect
of an unpaid sum shall be due and payable and shall be paid by the relevant
Borrower at the end of the period by reference to which it is calculated.
20.4 If any Lender or the Agent on its behalf receives or recovers all
or any part of an Advance made by such Lender otherwise than on the last day
of the Term thereof, the Borrower to whom such Advance was made shall pay to
the Agent on demand for the account of such Lender an amount equal to the
amount (if any) by which (i) the additional interest which would have been
payable on the amount so received or recovered had it been received or
recovered on the last day of the Term thereof exceeds (ii) the amount of
interest which in the opinion of the Agent would have been payable to the
Agent on the last day of the Term thereof in respect of a deposit in the
currency of the amount so received or recovered equal to the amount so
received or recovered placed by it with a prime bank in the London Interbank
Market for a period starting on the third business day following the date of
such receipt or recovery and ending on the last day of the Term thereof.
20.5 Any unpaid sum shall (for the purposes of' this Clause 20 and
Clause 15) be treated as an advance and accordingly in this Clause 20 and
Clause 15 the term "Advance" includes any unpaid
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sum and "Term", in relation to an unpaid sum, includes each such period
relating thereto as is mentioned in Clause 20.1.
20.6 If any person receives an amount in respect of a Borrower's
liability under the Finance Documents or if that liability is converted into
a claim, proof, judgment or order in a currency other than the currency (the
"CONTRACTUAL CURRENCY") in which the amount is expressed to be payable under
the relevant Finance Document:
(i) that Borrower shall indemnify that person as an independent
obligation against any loss or liability arising out of or as a result of
the conversion;
(ii) if the amount received by that person, when converted into the
contractual currency at a market rate in the usual course of its business,
is less than the amount owed in the contractual currency, that Borrower
shall forthwith on demand pay to that person an amount in the contractual
currency equal to the deficit; and
(iii) that Borrower shall pay to the person concerned on demand any
exchange costs and taxes payable in connection with any such conversion.
Each Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which it
is expressed to be payable.
21. CURRENCY OF ACCOUNT
21.1 A repayment or prepayment of an Advance or a payment by a Borrower
under Clause 8.2, is payable in the currency in which that Advance or
relevant Amount Demanded, as the case may be, is denominated.
21.2 Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
21.3 Amounts payable in respect of costs, expenses, taxes and the like
are payable in the currency in which they are incurred.
21.4 Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Swiss francs.
22. PAYMENTS
22.1 On each date on which this Agreement requires an amount to be paid
by a Borrower or any of' the Lenders hereunder, the relevant Borrower or, as
the case may be, such Lender shall make the same available in same day funds
to the Agent or to its account at such office or bank as it may notify to the
Borrower or Lender for this purpose.
22.2 On each date on which this Agreement requires an amount to be paid
by a Borrower or the Overdraft Provider in respect of any Short-Term
Advances, the relevant Borrower or, as the case may be, the Overdraft
Provider shall make the same available for value the same day by transfer to
such account with such bank in Zurich as the Overdraft Provider or, as the
case may be, such Borrower shall have specified for this purpose.
22.3 Save as otherwise provided herein, each payment received by the
Agent for the account of another person shall be made available by the Agent
to such other person (in the case of a
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Bank, for the account of its Facility Office) for value the same day by
transfer to such account of such person with such bank in the principal
financial centre of the relevant currency as such person shall have
previously notified to the Agent.
22.4 All payments required to be made by a Borrower hereunder shall be
calculated without reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on account of any set-off
or counterclaim.
22.5 Where a sum is to be paid hereunder to the Agent for account of
another person, the Agent shall not be obliged to make the same available to
that other person until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to whom
such sum was so made available shall on request refund the same to the Agent
together with an amount sufficient to indemnify the Agent against any cost or
loss it may have suffered or incurred by reason of its having paid out such
sum prior to its having received such sum.
23. SET-OFF AND NETTING OF PAYMENTS
23.1 Each Borrower authorizes each Lender upon the occurrence of an
Event of Default and consequent acceleration of the obligations of such
Borrower hereunder pursuant to Clause 19 hereof to apply any credit balance
to which such Borrower is entitled on any account of that Borrower with that
Lender in satisfaction of any sum due and payable from such Borrower to such
Lender hereunder but unpaid; for this purpose, each Lender is authorized to
purchase with the moneys standing to the credit of any such account such
other currencies as may be necessary to effect such application. Such Lender
shall notify the relevant Borrower of any such application. No Lender shall
be obliged to exercise any right given to it by this Clause 23.
23.2 If, on any occasion, the Agent receives a payment for the account
of a Borrower pursuant to Clause 22.1, the Agent may make available such
payment to the relevant Borrower by application:
(i) first, in or towards payment the same day of any amount then
due from such Borrower hereunder to the person from whom the amount was
so received, and
(ii) secondly, in or towards payment the same day to the account
of such Borrower with such Lender in Zurich as such Borrower shall have
previously notified to the Agent for this purpose.
24. REDISTRIBUTION OF PAYMENTS
24.1 Subject to Clause 24.2, if, at any time, the proportion which any
Bank (a "Recovering Bank") has received or recovered (whether by payment, the
exercise of a right of set-off or combination of accounts or otherwise) in
respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under
this Agreement by either Borrower for account of such Recovering Bank and one
or more other Banks is greater (the portion of such receipt or recovery
giving rise to such excess proportion being herein called an "EXCESS AMOUNT")
than the proportion thereof so received or recovered by the Bank or Banks so
receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the Agent an amount equal to
such excess amount;
(ii) there shall thereupon fall due from the relevant Borrower to
such Recovering
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Bank an amount equal to the amount paid out by such Recovering Bank
pursuant to paragraph (i) above, the amount so due being, for the
purposes hereof, treated as if it were an unpaid part of such Recovering
Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (i) above as if such amount had been
received by it from the relevant Borrower in respect of such relevant
payment and shall pay the same to the persons entitled thereto (including
such Recovering Bank) PRO RATA to their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to
enforce its rights hereunder and, as a result thereof or in connection
therewith, shall receive any excess amount (as defined in Clause 24.1), then
such Bank shall not be required to share any portion of such excess amount
with any Bank which has the legal right to, but does not, join in such action
or proceeding or commence and diligently prosecute a separate action or
proceeding to enforce its rights in another court.
25. FEES
Pelikan Produktions AG shall pay to the Agent for account of each Bank a
Commitment Fee (the "COMMITMENT FEE") on the amount of such Bank's Available
Commitment (less, if such Bank is also the Overdraft Provider, the Overdraft
Provider's outstanding Short-Term Advances on such day) from day to day
during the period beginning on 24th February, 1995 and ending on the
Termination Date at the applicable Commitment Fee Percentage per annum and
payable in arrears on and to (but excluding) each 31st March, 30th June, 30th
September and 31st December falling during the term of this Agreement and on
the Termination Date. For this purpose, Utilizations are taken at their
Original Swiss Franc Amount.
26. COSTS AND EXPENSES
26.1 Except as otherwise agreed in writing by the Agents and the
Borrowers, whether or not the Closing Date shall occur, Pelikan Produktions
AG shall, on demand of an Agent, reimburse such Agent to the extent not
recovered under any other Loan Document (as defined in the Credit Agreements)
or other Finance Documents, for:
(i) all reasonable costs of furnishing all opinions required
hereunder by counsel for the Borrowers (including, without limitation, any
opinions reasonably requested by such Agent as to any legal matters arising
hereunder or under any Security Document) and of the Borrowers' compliance
with all agreements and conditions contained herein or in any Finance
Document on its part to be performed or complied with together with any VAT
thereon;
(ii) the reasonable fees, expenses and disbursements of counsel to
such Agent together with any VAT thereon properly incurred in connection
with the negotiation, preparation, execution and administration of this
Agreement and the Finance Documents, each Advance made, and each Letter of
Credit issued, thereunder and any amendments and waivers thereto;
(iii) all the actual costs and expenses of creating and perfecting any
encumbrance in favor of the Lenders contemplated by the Finance Documents
including filing and recording fees and expenses, stamp duty or similar
taxes, reasonable fees and expenses of legal counsel for providing such
legal opinions as such Agent may reasonably request in connection therewith
and reasonable fees and expenses of legal counsel to such Agent;
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(iv) all costs and expenses (including reasonable legal fees)
incurred by such Agent in connection with the preservation and enforcement
of any of the rights of such Agent and the Lenders in connection with any
workout or collection of any of the obligations of the Borrowers under this
Agreement and the Finance Documents or enforcement of this Agreement or the
Finance Documents;
(v) all reasonable accountable out-of-pocket expenses (including
travel and due diligence expenses) incurred by the Lenders in connection
with the negotiation and closing of the Finance Documents; and
(vi) all other actual and reasonable out-of-pocket expenses incurred
by the Agent in connection with the making of Advances and issuance of
Letters of Credit hereunder.
26.2 If Pelikan Produktions AG fails to perform any of their obligations
under Clause 26.1, each Bank shall, in its Proportion, indemnify each Agent
and Arranger against any loss incurred by it as a result of such failure and
the Borrowers shall forthwith reimburse each Bank for any payment made by it
pursuant to Clause 26.1.
26.3 In addition to the provisions of Clause 26.1 and whether or not the
Closing Date shall occur, Pelikan Produktions AG agrees to indemnify, pay and
hold each Agent and each Lender, and their respective officers, directors,
employees, agents, and affiliates (collectively called the "INDEMNITEES")
harmless from and against, any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, and
out-of-pocket costs, expenses and disbursements of any kind or nature
whatsoever including, without limitation, reasonable legal fees) in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto, that may be imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of this Agreement or any
Security Document, or the use or intended use of the proceeds thereof or in
any way relating to or resulting from the actions or assets of the Borrowers
or any of their respective subsidiaries (the "INDEMNIFIED LIABILITIES"),
provided that the Borrowers shall have no obligation under this Clause 26.3
to any Indemnitee arising from the fraud, gross negligence, willful
misconduct or willful breach of this Agreement or any Security Document by
any party hereto and its related Indemnitees.
27. THE AGENTS AND THE LENDERS
27.1 Each Lender hereby appoints the Agent to act as its agent in
connection with this Agreement and the Finance Documents and the Collateral
Agent to act as its agent in connection with the Collateral Documents and
authorizes each of the Agent and the Collateral Agent to exercise such
rights, powers, authorities and discretions as are specifically delegated to
the Agent by the terms hereof together with all such rights, powers,
authorities and discretions as are reasonably incidental thereto.
27.2 Each of the Agent and the Collateral Agent may:
(i) assume that:
(a) any representation made by any Obligor in connection with
any Finance Document is true;
(b) no Event of Default has occurred;
(c) no Obligor is in breach of or default under its obligations
under any Finance Document; and
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(d) any right, power, authority or discretion vested in a
Finance Document upon the Requisite Lenders, the Lenders or any other
person or group of persons has not been exercised,
unless it has, in its capacity as agent for the Lenders hereunder,
received notice to the contrary from any other party hereto;
(ii) assume that the Facility Office of each Bank is that identified
with its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee) until it has
received from such Bank a notice designating some other office of such Bank
to replace its Facility Office and act upon any such notice until the same
is superseded by a further such notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may to it
seem necessary, expedient or desirable and rely upon any advice so
obtained;
(iv) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Borrowers upon a Certificate
signed by or on behalf of the Borrowers;
(v) rely upon any communication or document believed by it to be
genuine;
(vi) refrain from exercising any right, power or discretion vested in
it as Agent under any Finance Document unless and until instructed by the
Requisite Lenders as to whether or not such right, power or discretion is
to be exercised and, if it is to be exercised, as to the manner in which it
should he exercised; and
(vii) refrain from acting in accordance with any instructions of the
Requisite Lenders to begin any legal action or proceeding arising out of or
in connection with this Agreement or any other Finance Document until it
shall have received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses, expenses
(including without limitation, legal fees) and liabilities together with
any VAT thereon which it will or may expend or incur in complying with such
instructions.
27.3 Each of the Agent and the Collateral Agent shall:
(i) promptly inform each Lender of the contents of any notice or
document received by it in its capacity as Agent or, as the case may be,
Collateral Agent from an Obligor under a Finance Document;
(ii) promptly notify each Lender of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or
compliance with its obligations under a Finance Document of which it has
notice from any other party hereto;
(iii) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by the Requisite Lenders,
which instructions shall be binding on all of the Lenders; and
(iv) if so instructed by the Requisite Lenders, refrain from
exercising any right, power or discretion vested in it as agent hereunder.
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27.4 Notwithstanding anything to the contrary expressed or implied
herein, neither the Agent nor the Collateral Agent shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by an Obligor in
connection with a Finance Document is true;
(b) the occurrence or otherwise of any Event of Default;
(c) the performance by each Obligor of its obligations under
each Finance Document to which it is a party; or
(d) any breach of or default by an Obligor of or under its
obligations under any Finance Document.
(ii) be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account;
(iii) be bound to disclose to any other person any information
relating to the Borrower if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person; or
(iv) be under any obligations other than those for which express
provision is made herein.
27.5 Each Lender shall, in its Proportion, from time to time on demand
by the Agent or as the case may be, the Collateral Agent, indemnify the Agent
or as the case may be, the Collateral Agent against any and all costs,
claims, losses, expenses (including, without limitation, legal fees) and
liabilities together with any VAT thereon which it may incur, otherwise than
by reason of its own gross negligence or willful misconduct, in acting in its
capacity as agent hereunder.
27.6 The Agent and the Collateral Agent do not accept any responsibility
for the accuracy and/or completeness of any information supplied by either
Borrower in connection herewith or for the legality, validity, effectiveness,
adequacy or enforceability of this Agreement or any other Finance Document
and the Agent and the Collateral Agent shall not be under any liability as a
result of taking or omitting to take any action in relation to this Agreement
or any other Finance Document, save in the case of fraud, gross negligence or
wilful misconduct.
27.7 Each of the Lenders agrees that it will not assert or seek to
assert against any director, officer or employee of the Agent or the
Collateral Agent any claim it might have against any of them in respect of
the matters referred to in Clause 27.6.
27.8 The Agent and the Collateral Agent may accept deposits from, lend
money to and generally engage in any kind of banking or other business with
either Borrower.
27.9 Each of the Agent and the Collateral Agent may resign its
appointment hereunder at any time without assigning any reason therefor by
giving not less than thirty days' prior written notice to that effect to each
of the other parties hereto and by appointing any of its affiliates in its
stead, such appointment to take effect from the date of resignation of the
resigning agent.
27.10 If a successor to the Agent or the Collateral Agent is
appointed under the provisions of
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Clause 27.9, then (i) the retiring Agent shall he discharged from any further
obligation hereunder but shall remain entitled to the benefit of the
provisions of this Clause 27 and (ii) its successor and each of the other
parties hereto shall have the same rights and obligations amongst themselves
as they would have had if such successor had been a party hereto.
27.11 It is understood and agreed by each Lender that it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of the Borrowers and,
accordingly, each Lender warrants to the Agent and the Collateral Agent that
it has not relied on and will not hereafter rely on the Agent and the
Collateral Agent or any one of them:
(i) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by the Borrowers in connection
with any Finance Document or the transactions therein contemplated (whether
or not such information has been or is hereafter circulated to such Lender
by the Agent and the Collateral Agent or any one of them); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of either
Borrower.
27.12 In acting as agent and/or collateral agent for the Lenders, the
agency division of each of the Agent and the Collateral Agent shall be
treated as a separate entity from any other of its divisions or departments
and, notwithstanding the foregoing provisions of this Clause 27, in the event
that the Agent or the Collateral Agent should act for either Borrower in any
capacity in relation to any other matter, any information given by the
relevant Borrower to the Agent or the Collateral Agent in such other capacity
may be treated as confidential by the Agent or the Collateral Agent.
28. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors, Transferees, Overdraft
Facility Transferees and permitted assigns.
29. ASSIGNMENTS AND TRANSFERS BY THE BORROWERS
Neither Borrower shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
30. ASSIGNMENTS AND TRANSFERS BY BANKS, CHANGE OF OVERDRAFT PROVIDER
30.1 Any Bank may, at any time, assign all or any of its rights and
benefits hereunder, sell participations in, or transfer in accordance with
Clause 30.3 (but not otherwise) all or any of its rights, benefits and
obligations hereunder to any person provided that:
(i) no such assignment or transfer may be made;
(a) unless the Bank also transfers or assigns to the same
person a pro rata share of its rights, benefits and obligations
(if any) under the Credit Agreement and the UK Facility (unless such
assignment or transfer is to an Eligible Assignee as defined in the
Credit Agreement with the prior written consent of the Agent, which
consent shall not be unreasonably withheld);
(b) without the prior written consent of the Fronting Bank, the
Overdraft
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Provider and the Agent, such consent not to be unreasonably withheld
or delayed, and the prior written consent of the Borrowers if such
assignment or transfer is made to any person that is not an Eligible
Assignee as defined in the Credit Agreement and no Event of Default
has occurred and is continuing, such consent not to be unreasonably
withheld or delayed;
(c) if the result thereof would be that either Borrower would
be liable to pay an additional amount or amounts pursuant to
Clauses 14 or 15 which additional amount or amounts would not have
been payable had no such transfer or assignment occurred unless such
Transferee or assignee agrees to waive its rights to receive such
additional amount or amounts and any rights under Clause 24 with
respect to such amounts; and
(ii) no such participation may be made unless:
(a) the relevant Bank remains the lender of record hereunder
and the proposed participant does not become the lender of record
hereunder;
(b) the relevant Bank's obligations hereunder shall remain
unchanged and it shall remain solely responsible for the performance
thereof;
(c) all parties hereto shall be entitled to deal solely with
the relevant Bank in connection with its Commitment and other rights
and obligations of the relevant Bank under the Finance Documents;
(d) such Bank shall be solely responsible for any withholding
taxes or filing or reporting requirements relating to such
participation and shall hold harmless each Borrower and the Agent
against the same;
(e) such participant shall represent and warrant that it does
not engage in the same line of business as, or derive more than 10%
of its revenues in the same line of business as, either Borrower; and
(f) any such participant which is not an affiliate of the
relevant Bank shall not be entitled to require the relevant Bank to
take or omit to take any action under any Finance Document except
action directly affecting the extension of the "Termination Date"
hereunder or the reduction of the principal amount or the decrease in
the rate of interest payable hereunder or any fees related thereto.
30.2 If any Bank assigns all or any of its rights and benefits
hereunder in accordance with Clause 30.1, then, unless and until the assignee
has agreed with the Agent and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had been
an original party hereto as a Bank, the Agent and the other Banks shall not
be obliged to recognize such assignee as having the rights against each of
them which it would have had if it had been such a party hereto.
30.3 If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations hereunder as contemplated in Clause 30.1, then such
transfer shall be effected by the delivery to the Borrowers and the Agent of
a duly completed and duly executed Transfer Certificate in which event, on
the later of the Transfer Date specified in such Transfer Certificate and the
fifth business day after (or such earlier business day endorsed by the Agent
on such Transfer Certificate falling on or after) the date of delivery of
such Transfer Certificate to the Agent;
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(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations hereunder,
the Borrowers and such Bank shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights, benefits and obligations being
referred to in this Clause 30.3 as "discharged rights and obligations");
(ii) the Borrowers and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one another
which differ from such discharged rights and obligations only insofar as
the Borrowers and such Transferee have assumed and/or acquired the same in
place of the Borrowers and such Bank;
(iii) the Agent, such Transferee and the other Banks shall acquire
the same duties and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer; and
(iv) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its Commitment, the Transferee shall replace such
Bank under the terms of any relevant Letter of Credit.
30.4 On the date upon which a transfer takes effect pursuant to Clause
30.3, the Transferee in respect of such transfer shall pay to the Agent for its
own account a transfer fee of L500.
30.5 Pelikan Produktions AG may, at any time and from time to time, upon
notice to the Agent, request that a different Lender specified by Pelikan
Produktions AG be appointed as the Overdraft Provider. Promptly upon such other
Lender agreeing to such request and repayment of all outstanding Short-Term
Advances together with accrued interest thereon to the existing Overdraft
Provider, the existing Overdraft Provider shall transfer to such Lender all (but
not part) of its rights, benefits and obligations hereunder as the Overdraft
Provider.
Any transfer contemplated by this Clause 30.5 shall be effected by the
delivery to the Borrowers and the Agent of a duly completed and duly executed
Overdraft Provider Transfer Certificate in which event, on the later of the
Transfer Date specified in such certificate and the fifth business day after
(or such earlier business day endorsed by the Agent on such certificate
falling on or after) the date of delivery of such certificate to the Agent;
(i) the Borrowers and the Overdraft Provider shall be released from
further obligations towards one another hereunder and their respective
rights against one another shall be cancelled;
(ii) the Borrowers and the Overdraft Facility Transferee shall
acquire the same rights and benefits and assume the same obligations
towards one another as they would have acquired and assumed had
the Overdraft Facility Transferee been an original party hereto as the
Overdraft Provider; and
(iii) the Agents, the Overdraft Facility Transferee and the other
parties hereto shall acquire the same rights and benefits and assume the
same obligations between themselves as they would have acquired and assumed
had the Overdraft Facility Transferee been an original party hereto as the
Overdraft Provider with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer.
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31. DISCLOSURE OF INFORMATION
Each Lender shall take normal and reasonable precautions to maintain the
confidentiality of all information obtained pursuant to the requirements of
any Finance Document which has been identified as such by the Borrowers
(including, without limitation, the reports delivered pursuant to the Third
Schedule to the Original Agreement) but may, in any event, make disclosures
reasonably required by any bona fide assignee, Transferee, Overdraft Facility
Transferee or participant (or prospective assignee, Transferee or
participant) in connection with the contemplated assignment or transfer of
any of its rights and obligations thereunder provided that (a) such assignee,
Transferee, Overdraft Facility Transferee, participant or person agrees to
comply with the provisions of this Clause 31; (b) such prospective assignee,
Transferee, Overdraft Facility Transferee or participant shall have executed
a confidentiality agreement substantially in the form of the Exhibit; and (c)
no Lender shall be obliged or required to return any written information or
other materials furnished by the Borrowers in connection with any Finance
Document. Notwithstanding the foregoing, the Agents and/or any Lender shall
be entitled to disclose any such information;
(i) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for discovering
documents or otherwise; or
(ii) if required by any law or regulation having the force of law; or
(iii) pursuant to any requirement or request of any fiscal, monetary,
tax, governmental or other competent authority; or
(iv) to its auditors, legal or other professional advisors; or
(v) which is in the public domain,
and unless specifically prohibited by applicable law or court order, such
Lender shall notify the Borrowers of any disclosure pursuant to paragraphs
(i), (ii) and (iii).
32. CALCULATIONS AND EVIDENCE OF DEBT
32.1 Interest and Commitment Fee shall accrue from day to day and shall
be calculated on the basis of a year of 360 days or (in the case of interest
payable on an amount denominated in sterling) 365 days and the actual number
of days elapsed.
32.2 Letter of Credit commission in respect of any Letter of Credit, and
any period of the Term thereof determined pursuant to Clause 9, shall be
calculated on the basis of a year of 360 days or (in the case of a Letter of
Credit denominated in sterling) 365 days and the actual number of days in
such period (or, in any case where market practice differs, in accordance
with market practice).
32.3 If on any occasion a Reference Bank or Bank fails to supply the
Agent with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be determined
from those quotations which are supplied to the Agent.
32.4 Each Lender shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing to it
hereunder.
32.5 The Agent shall maintain on its books a control account or accounts
in which shall be recorded (i) the amount of any Advance made or arising
hereunder (and the name of the Lender to
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which such sum relates) and the face amount of any Letter of Credit issued
(and each Lender's share therein), (ii) the amount of all principal. interest
and other sums due or to become due from either Borrower to any of the
Lenders hereunder and each Lender's share therein and (iii) the amount of any
sum received or recovered by the Agent hereunder and each Lender's share
therein.
32.6 In any legal action or proceedings arising out of or in connection
with this Agreement, the entries made in the accounts maintained pursuant to
Clauses 32.4 and 32.5 shall in the absence of manifest error be conclusive
evidence of the existence and amounts of the obligations of the Borrowers
therein recorded.
32.7 A certificate of a Lender as to (i) the amount by which a sum
payable to it hereunder is to be increased under Clause 14 or (ii) the amount
for the time being required to indemnify it against any such cost, payment or
liability as is mentioned in Clause 15 shall, in the absence of manifest
error, be conclusive for the purposes of this Agreement.
32.8 Each Lender hereby represents that as at 24th February, 1995 (i)
its participation as a Lender hereunder and extension of credit in respect
hereof will not require registration or qualification under any applicable
securities laws nor is it illegal (as referred to in Clause 16), and (ii) it
is a Qualifying Lender. Barclays Bank PLC represents that as at the date
hereof Barclays Overdraft Agent is a person recognized as a bank pursuant to
Clause 232 of the Circular of Swiss Federal Tax Authorities, dated 29th
October, 1992 regarding the tax treatment of syndicated loans, debt
certificate issues, promissory notes and subparticipations.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent and the Lenders or any of them, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise thereof or the exercise
of any other right or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
34. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor
the legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired thereby.
35. NOTICES
35.1 Each communication to be made hereunder shall, unless otherwise
stated, be made in writing by telex, telefax or letter.
35.2 Any communication or document (unless made by telefax) to be made
or delivered by one person to another pursuant to this Agreement shall
(unless that other person has by fifteen days' written notice to the Agent
specified another address) be made or delivered to that other person at the
address identified with its signature below (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a party as Transferee,
or in the case of an Overdraft Facility Transferee, at the end of the
Overdraft Provider Transfer Certificate to which it is a party as the
Overdraft Facility Transferee) and shall be deemed to have been made or
delivered when despatched and the appropriate answerback received (in the
case of any communication made by telex) or (in the case of any communication
made by letter) when left at that address or (as the case may be) ten days
after being
-33-
deposited in the post postage prepaid in an envelope addressed to it at that
address provided that any communication or document to be made or delivered
to the Agent shall be effective only when received by the Agent and then only
if the same is expressly marked for the attention of the department or
officer identified with the Agent's signature below (or such other department
or officer as the Agent shall from time to time specify for this purpose).
35.3 Where any provision of this Agreement specifically contemplates
telephone or telefax communication made by one person to another, such
communication shall be made to that other person at the relevant telephone
number specified by it from time to time for the purpose and shall be deemed
to have been received when made (in the case of any communication by
telephone) or when transmission has been completed (in the case of any
telecommunication by telefax). Each such telefax communication, if made to
the Agent by a Borrower shall be signed by the person or persons authorized
by that Borrower in the certificate delivered pursuant to the Third Schedule
and shall be expressed to be for the attention of the department or officer
whose name has been notified for the time being for that purpose by the Agent
to the Borrowers,
35.4 Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation thereof.
36. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
Faxes of signatures shall be binding and effective as originals.
-34-
37. AMENDMENTS
To the extent not otherwise expressly provided in any Finance Document,
no amendment, modification, termination or waiver of any provision of any
Finance Document or consent to any departure by a Borrower therefrom, shall
in any event be effective without the written concurrence of the Requisite
Lenders and the Borrowers; except that any amendment, modification,
termination, or waiver that (i) changes the amount of the Commitments or the
principal amount of the Advances or extends the scheduled maturity thereof or
changes the currency of any payment hereunder; (ii) changes any Proportion or
the definition of "Requisite Lenders"; (iii) extends the dates on which
interest is or fees are payable hereunder, or the maximum duration of
interest periods; or (iv) reduces any interest rates payable on the Advances
or any fees (other than administrative fees) payable hereunder or under any
other Finance Document, each shall be effective only if evidenced by a
writing signed by or on behalf of all Lenders under this Agreement and the
Borrowers; provided, however, that (A) the First Schedule and the Commitments
and Proportions shall be amended from time to time to give effect to the
Commitments and Proportions of each new Bank that becomes a party to this
Agreement at the time such Bank becomes a Bank and (B) any amendment,
modification or waiver that changes any administrative fees, or the times at
which such fees are payable hereunder shall be effective only if evidenced by
a writing signed by or on behalf of the Borrowers and each Lender affected
thereby. Any amendment, modification, termination or waiver of any of the
conditions precedent to funding an Advance shall be effective only if
evidenced by a writing signed by or on behalf of the Requisite Lenders and
the Borrowers. No amendment, modification, termination or waiver of any
provision of the agency provisions of this Agreement shall be effective
without the written concurrence of the Agents, the Requisite Lenders and the
Borrowers. No amendment, modification, termination or waiver of any Finance
Document that releases any guarantor or releases any collateral under the
Security Documents not otherwise permitted under the Credit Agreement or such
Security Document shall be effective unless evidenced by a writing signed by
or on behalf of Banks having 80% or more of the combined aggregate amount of
the Commitments under this Agreement or, in the case of the Commitment under
this Agreement that has been terminated, the Outstandings, if any, made
hereunder. The Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on either Borrower shall entitle such Borrower
to any other or further notice or demand in similar or other circumstances.
Any amendment, modification, termination, waiver or consent with respect to
this Agreement effected in accordance with this Clause 37 shall be binding
upon the Borrowers.
38. BORROWER SECESSION
In the event that any Borrower is required to make any additional
payment to a Lender pursuant to Clauses 14 or 18.2 or any Lender claims
indemnification under Clauses 15.1 or 15.2 or an event referred to in Clause
16 occurs and such requirement, claim or consequence of such event would be
avoided or mitigated by that Borrower ceasing to be a Borrower hereunder then
subject to the Borrower being under no actual obligation or contingent
payment obligation under or pursuant to any Finance Document, it may cease to
be a Borrower hereunder with the prior written consent of the Agent and upon
receipt by the Agent of a Borrower Secession Memorandum.
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39. GUARANTEE BY PELIKAN PRODUKTIONS AG
39.1 As consideration for Banks and the Overdraft Provider agreeing to
enter into this Agreement and extend the Commitments and Short-Term Advances,
as applicable, hereunder, Pelikan Produktions AG hereby unconditionally and
irrevocably guarantees the due and punctual payment when due of all
Obligations of Pelikan Hardcopy (International) AG. For purposes of this
Clause 39: (i) Pelikan Produktions AG is referred to as the "Swiss Guarantor"
and the obligations of Pelikan Produktions AG under this Clause 39.1 are
referred to as this "Guarantee" and (ii) "Obligations" shall mean all
obligations and liabilities of Pelikan Hardcopy (International) AG owed to
Agents, Arrangers, the Fronting Bank, or Lenders (or any of them) under this
Agreement or any of the other Finance Documents.
39.2 The Swiss Guarantor waives presentation of, demand of, payment from
and protest of any Obligation of Pelikan Hardcopy (International) AG and also
waives notice of protest for non-payment. The obligations of the Swiss
Guarantor under the Guarantee shall not be affected by, and the Swiss
Guarantor hereby waives its rights (to the extent permitted by applicable
law) in connection with:
(a) the failure of any Agent, the Fronting Bank or any Lender to
assert any claim or demand or to enforce any right or remedy against
Pelikan Hardcopy (International) AG under the provisions of this Agreement
or any other agreement or otherwise;
(b) any extension or renewal of any provision thereof;
(c) any increase in the amount of the Obligations;
(d) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Agreement (subject to Clause 37) or any
instrument executed pursuant hereto;
(e) the release of any of the security held by any party for the
Obligations of Borrowers;
(f) the failure of any Agent, the Fronting Bank or any Lender to
exercise any right or remedy against any other guarantor of the
Obligations;
(g) any Agent, the Fronting Bank or any Lender taking and holding
security or collateral for the payment of this Guarantee, any other
guarantees of the Obligations or other liabilities of Pelikan Hardcopy
(International) AG and the Obligations guaranteed hereby, and exchanging,
enforcing, waiving and releasing any such security or collateral;
(h) any Agent, the Fronting Bank or any Lender applying any such
security or collateral and directing the order or manner of sale thereof as
Collateral Agent and Agent in their discretion, may determine; or
(i) any Agent, the Fronting Bank or any Lender settling, releasing,
compromising, collecting or otherwise liquidating the Obligations and any
security or collateral therefor in any manner determined by the applicable
Agent, the Fronting Bank or such Lender.
The obligations of the Swiss Guarantor under this Guarantee shall not be
subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim
-36-
of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations, discharge of Pelikan Hardcopy (International) AG from the
Obligations in a bankruptcy or similar proceeding or otherwise. Without
limiting the generality of the foregoing, the obligations of the Swiss
Guarantor under this Guarantee shall not be discharged or impaired or
otherwise affected by the failure of any Agent, the Fronting Bank or any
Lender to assert any claim or demand or to enforce any remedy under this
Agreement or any other agreement, by any waiver or modification of any
provision thereof, by any default, failure or delay, wilful or otherwise, in
the performance of the Obligations, or by any other act or thing or omission
or delay to do any other act or thing that may or might in any manner or to
any extent vary the risk of the Swiss Guarantor or would otherwise operate as
a discharge of the Swiss Guarantor as a matter of law or equity.
Any Agent may, at its or their election, foreclose on any security held
by them by one or more judicial or nonjudicial sales, or exercise any other
right or remedy any Agent may have against Swiss Guarantor, Pelikan Hardcopy
(International) AG or any security without affecting or impairing in any way
the liability of the Swiss Guarantor hereunder except to the extent the
Obligations have been paid. The Swiss Guarantor waives any defense arising
out of such election by an Agent, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right
or remedy of the Swiss Guarantor against Pelikan Hardcopy (International) AG
or any security, so long as such Agent has acted in a commercially reasonable
manner.
The Swiss Guarantor further agrees that this Guarantee shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any of the Obligations is
rescinded or must otherwise be restored by any Agent, the Fronting Bank or
any Lender upon the bankruptcy or reorganization of Pelikan Hardcopy
(International) AG or otherwise.
The Swiss Guarantor further agrees, in furtherance of the foregoing and
not in limitation of any other right that any Agent, the Fronting Bank or any
Lender may have at law or in equity against the Swiss Guarantor by virtue
hereof, upon the failure of Pelikan Hardcopy (International) AG to pay any of
the Obligations when and as the same shall become due (whether by required
prepayment, declaration, demand or otherwise), the Swiss Guarantor will
forthwith pay, or cause to be paid, in cash, to an Agent an amount equal to
the sum of the unpaid principal amount of such Obligations, accrued and
unpaid interest on such Obligations and all other Obligations of Pelikan
Hardcopy (International) AG to any Agent, the Fronting Bank or such Lender.
So long as any of the Obligations shall remain outstanding hereunder,
the Swiss Guarantor hereby irrevocably waives any right of subrogation,
contribution, indemnity or otherwise against Pelikan Hardcopy (International)
AG that may arise out of or be caused by this Guarantee, all rights and/or
claims against Pelikan Hardcopy (International) AG which may arise against
Pelikan Hardcopy (International) AG by reason of this Guarantee, any right to
enforce any remedy that any Lenders now have or may hereafter have against
Pelikan Hardcopy (International) AG and any benefit of, and any right to
participate in, any security now or hereafter held by or on behalf of Lenders.
Notwithstanding anything contained in this Clause 39.2 to the contrary,
this Guarantee shall not be effective or in full force and effect until the
Closing Date.
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40. LAW
This Agreement shall be governed by, and shall be construed in
accordance with, English law.
41. JURISDICTION
41.1 Each Borrower hereby irrevocably agrees for the benefit of each of
the other parties hereto that the courts of England shall have jurisdiction
to hear and determine any suit, action or proceeding, and to settle any
disputes which may arise out of or in connection with this Agreement and, for
such purposes irrevocably submits to the jurisdiction of such courts.
41.2 Each Borrower irrevocably waives any objection which it might now
or hereafter have to the courts referred to in Clause 41.1 being nominated as
the forum to hear and determine any suit, action or proceeding, and to settle
any disputes, which may arise out of or in connection with this Agreement and
agrees not to claim that any such court is not a convenient or appropriate
forum.
41.3 Each Borrower agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection with
any suit, action or proceeding in England to Pelikan Scotland Limited at
Xxxxxxxxx Xxx, Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx XX0 AUJ or otherwise its
registered office for the time being. If the appointment of the person
mentioned in this Clause 41.3 ceases to be effective each Borrower shall
immediately appoint a further person in England to accept service of process
on its behalf in England and, failing such appointment within 15 days, the
Agent shall be entitled to appoint such a person by notice to the Borrowers.
Nothing contained herein shall affect the right to serve process in any other
manner permitted by law.
41.4 The submission to the jurisdiction of the courts referred to in
Clause 41 shall not (and shall not be construed so as to) limit the right of
any party to take proceedings against any other party in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable
law.
42. WAIVERS; RATIFICATIONS
Borrowers each hereby expressly acknowledge and agree that, as of the
Closing Date, save and except the Hedging Documents, 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 Bank, the
Agent, the Documentation Agent, the Collateral Agent, the Fronting Bank, or
the Overdraft Provider or any grounds or cause for reduction, modification or
subordination of the obligations of Borrowers under this Agreement and/or any
Security Document or any liens or security interests of any Bank, the Agent,
the Documentation Agent, the Collateral Agent, the Fronting Bank, or the
Overdraft Provider. To the extent either Borrower possesses, as of the
Closing Date, any such setoffs, counterclaims, adjustments, recoupments,
claims, actions, grounds or causes, each Borrower hereby waives, and hereby
releases each Bank, the Agent, the Documentation Agent, the Collateral Agent,
the Fronting Bank, and the Overdraft Provider 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. Borrowers hereby
acknowledge that they are indebted to Banks with respect to Advances in the
principal amount of CHF 49,750,000, including CHF 6,000,000 Short Term
Advances, which are outstanding on the date hereof. Borrowers hereby ratify
and confirm their
-38-
respective obligations under the Security Documents. This Agreement amends
and restates the Original Agreement in its entirety.
AS WITNESS the hands of the duly authorized representatives of the
parties hereto the day and year first before written.
-39-
THE FIRST SCHEDULE
THE BANKS
BANK COMMITMENT (CHF)
Barclays Bank PLC 7,000,000
NationsBank N.A. 16,525,000
Commerzbank AG 5,000,000
Deutsche Bank AG 5,000,000
The First National Bank of Chicago 5,000,000
Societe Generale 4,925,000
ABN AMRO Bank N.V. 3,275,000
Credit Lyonnais, S.A. 3,275,000
-40-
THE SECOND SCHEDULE
FORM OF TRANSFER CERTIFICATE
To Barclays Bank PLC
Pelikan Produktions XX
Xxxxxxx Hardcopy (International) AG
TRANSFER CERTIFICATE
relating to the third amended and restated agreement (the "FACILITY
AGREEMENT") dated 31 July, 1997 whereby a revolving credit facility was made
available to Pelikan Produktions AG and Pelikan Hardcopy (International) AG
as borrowers by a group of banks on whose behalf Barclays Bank PLC acted as
agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to
any contrary indication, have the same meanings herein. The terms Bank and
Transferee are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule
hereto under the heading "BANK'S COMMITMENT" or "ADVANCE(S)" accurately
summarizes its Commitment and/or, as the case may be, the Term and Repayment
Date of one or more existing Advances made by it and (ii) requests the
Transferee to accept and procure the transfer to the Transferee of the
portion specified in the schedule hereto of, as the case may be, its
Commitment and/or such Advance(s) by counter-signing and delivering this
Transfer Certificate to the Agent at its address or the service of notices
specified in the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this
Transfer Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 30.3 of the Facility Agreement so as to take effect in
accordance with the terms thereof on the Transfer Date or on such later date
as may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the
Facility Agreement, together with such other information as it has required
in connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of any
such information and further agrees that it has not relied and will not rely
on the Bank to assess or keep under review on its behalf the financial
condition, creditworthiness. condition, affairs, status or nature of the
Borrowers.
5. The Transferee hereby undertakes with the Borrowers. the
Bank and each of the other parties to the Facility Agreement that it will
perform in accordance with their terms all those obligations which by the
terms of the Facility Agreement will be assumed by it after delivery of this
Transfer Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take effect. The
Transferee hereby makes the representations made by each Bank in Clause 32.8
of the Facility Agreement as though made on and as of the date hereof.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facility Agreement or any document relating
thereto and assumes no responsibility for the financial condition of the
Borrowers or for the performance and observance by the Borrowers of any of
their respective obligations under the Facility Agreement or my document
relating thereto and any and all such conditions and warranties, whether
express or implied by law or otherwise, are hereby excluded.
-41-
7. The Bank hereby gives notice that nothing herein or in the
Facility Agreement (or any document relating thereto) shall oblige the Bank
to (i) accept a re-transfer from the Transferee of the whole or any part of
its rights, benefits and/or obligations under the Facility Agreement
transferred pursuant hereto or (ii) support any losses directly or indirectly
sustained or incurred by the Transferee for any reason whatsoever including,
without limitation, the non-performance by the Borrowers or any other party
to the Facility Agreement (or any document relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges the
absence of any such obligation as is referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Term and Repayment Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Telefax:
Telephone:
-42-
THE THIRD SCHEDULE
CONDITIONS PRECEDENT
Each of the following:
1. A certificate of the secretary or a director of each
Borrower certifying that the copy of its constitutive documents delivered to
the Agent in connection with the Original Agreement (as amended, where
applicable, by any variation thereof which has itself been delivered to the
Agent and certified correct, complete and in full force and effect) remains
correct, complete and in full force and effect.
2. A copy of a resolution of the Board of Directors of each
Borrower;
(a) approving the terms of this Agreement and all other
documents to be executed by such Borrower in connection herewith; and
(b) authorizing a specified person or persons:
(i) to execute this Agreement and all other
documents to be executed by it hereunder or thereunder in connection
herewith or therewith; and
(ii) (unless previously so appointed and unchanged)
to give all notices, requests, instructions, certificates and other
documents to the Agent in connection with each of the Finance Documents
to which it is a party.
3. A certificate of a director of each Borrower certifying that
the utilization of the Facility in full would not cause any borrowing or
other limit binding on it to be exceeded.
4. A copy of the signature of each of the persons authorized by
the resolutions referred to in paragraph 2(b) above.
5. A certificate of a director of each Borrower confirming that
no Event of Default or Potential Event of Default will be in existence
immediately after the transactions due to take place on the Closing Date (as
defined in the Credit Agreement) have taken place.
6. A legal opinion relating to this Agreement from Xxxxx &
Xxxxx, English legal advisers to the Agent, in form and substance
satisfactory to the Agent.
Each copy document delivered under this part of this schedule by a
Borrower shall be certified by a director or the secretary of the relevant
Borrower. as at the date hereof (or such other date as the Agent may agree),
to be correct, complete and in full force and effect as at such date.
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THE FOURTH SCHEDULE
UTILIZATION REQUEST
From: Pelikan Produktions AG/Pelikan Hardcopy (International) AG
To: [Barclays Bank PLC]/[Overdraft Provider]
Dated:
Dear Sirs,
1. We refer to the third amended and restated agreement (the
"FACILITY AGREEMENT") dated 31 July, 1997 and made between Pelikan
Produktions AG and Pelikan Hardcopy (International) AG as borrowers, Barclays
Bank PLC as agent, NationsBank of Texas, N.A. as collateral and documentation
agent, Barclays Bank PLC as fronting bank, Barclays Bank PLC as overdraft
provider and the financial institutions named therein as banks. Terms
defined in the Facility Agreement shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility
Agreement, we wish [the Banks/ Overdraft Provider to make Advances/the Fronting
Bank to issue a Letter of Credit] as follows:
(i) Aggregate *[principal/face] amount:
(ii) Utilization Date:
(iii) *Term:
(iv) Currency:
(v) **[Repayment Date/Expiry Date]:
3. *[The proceeds of this Utilization should be credited to
[insert account details]]/[The Letter of Credit should be issued in favor of
[name of recipient] in the form attached and delivered to the recipient at
[address of recipient]].
Yours faithfully
--------------------------------------
for and on behalf of
PELIKAN PRODUKTIONS AG/PELIKAN HARDCOPY (INTERNATIONAL) AG
-----------
* Delete 15 Short-Term Advance
** Delete as appropriate
-44-
THE FIFTH SCHEDULE
TIMETABLES
UTILIZATION BY MEANS OF ADVANCES OTHER THAN SHORT-TERM ADVANCES
"D" = Utilization Date
"D-x" = x business days prior to Utilization Date
"Bs" = Banks
"A" = Agent
"( )" = Clause number of Agreement
1. Utilization Request to A (6. 1) D-2 9.30 a.m.
2. A to notify Bs of allocations by (6.4) D-2 10.30 a.m.
3. LIBOR fixing(l.1) D-2 11.00 a.m.
UTILIZATION BY MEANS OF SHORT-TERM ADVANCES
"D" = Utilization Date
"Op" = Overdraft Provider
"( )" = Clause number of Agreement
Utilization Request to OP (6. 1) D 9.30 a.m.
UTILIZATION BY MEANS OF LETTERS OF CREDIT
"D" = Utilization Date
"D-x" = x business days prior to Utilization Date
"Bs" = Banks
"A" = Agent
"( )" = Clause number of Agreement
1. Utilization Request to A (6. 1) 9.30 a.m.
2. Bs to have agreed identity of recipient D3 9:30 a.m.
of Letter of Credit (7.2(iii)) D3 3:00 p.m.
3. where applicable, form of Letter
of Credit to be agreed (7.2(iv)) D-3 3: 00 p.m.
4. A to notify Bs of allocations (6.4) D 10:00 a.m.
5. Letter of Credit to be issued (7.2) D 3:00 p. m.
THE SIXTH SCHEDULE
FORM OF BORROWER SECESSION MEMORANDUM
To: Barclays Bank PLC
From: Pelikan Produktions AG and
Pelikan Hardcopy (International) AG
-45-
Dated:
Dear Sirs,
1. We refer to the third amended and restated agreement (the
"FACILITY AGREEMENT") dated 31 July, 1997 and made between ourselves as
borrowers, Barclays Bank PLC as agent, NationsBank of Texas, N.A. as
collateral and documentation agent, the financial institutions defined
therein as Banks and others.
2. Terms defined in the Facility Agreement shall bear the same
meaning herein.
3. We hereby declare that [name of Borrower] is under no actual
or contingent obligation under or pursuant to any Finance Document in its
capacity as a Borrower.
4. Accordingly, pursuant to Clause 38 of the Facility Agreement
and with effect from receipt of this notice, [name of relevant Borrower]
shall cease to be a Borrower under the Facility Agreement.
Yours faithfully,
For and on behalf of
Pelikan Produktions AG and
Pelikan Hardcopy (international) AG
-46-
THE SEVENTH SCHEDULE
MANDATORY LIQUID ASSET COSTS RATE FORMULA
The Mandatory Liquid Asset Costs Rate to compensate the Banks for
the cost attributable to an Advance or other sum denominated in sterling for
any period for which such cost is to be computed under this Agreement
resulting from the imposition from time to time by the Bank of England (or
other Governmental authorities or agencies) of a requirement to place
non-interest-bearing deposits with the Bank of England, for the payment of
Special Deposits and the maintenance of secured money with certain financial
institutions (recognized for this purpose by the Bank of England) will be the
rate determined by the Agent (rounded upwards, if necessary, to four decimal
places) on the first day of the relevant period and for the duration of such
period (but in respect of such a period of longer than three months, the
average of the rates (rounded upwards as aforesaid) computed on a three
monthly basis during such period) in accordance with the following formula:
rate = XL + B(L-C) + S(X-X)
--------------------
100 - (X+s)
Where:
"X" is the amount required to be maintained by Barclays Bank PLC on
non-interest-bearing balances with the Bank of England expressed as
a percentage of eligible liabilities fixed by the Bank of England
(or other Governmental authorities or agencies). For the purpose of
this formula, this percentage will be expressed as a number.
"L" is the average of the offered quotations by the Reference Banks for
sterling deposits for the period for which the formula is being
applied in the London Interbank Market at or about 11.00 a.m. on the
day of quotation, expressed as a number and not as a percentage rate
per annum.
"B" is the average level of secured deposits expressed as a percentage
of eligible liabilities which Barclays Bank PLC is required by the
Bank of England to maintain with certain financial institutions
(recognized for this purpose by the Bank of England). For the
purpose of this formula this percentage will be expressed as a
number.
"C" is the average of the rates at which certain financial institutions
(recognized for this purpose by the Bank of England) bid for
sterling deposits for the period for which the formula is being
applied from the Reference Banks at or about 11.00 a.m. on the day
of quotation, expressed as a number and not as a percentage rate per
annum.
"S" is the amount of Special Deposits required to be maintained by
Barclays Bank PLC expressed as a percentage of eligible liabilities
fixed by the Bank of England (or other Governmental authorities or
agencies). For the purposes of this formula this percentage will be
expressed as a number.
"D" is the rate of interest paid by the Bank of England on Special
Deposits, expressed as a number and not as a percentage rate per
annum.
In the event of any change in circumstance (including the
imposition of alternative or additional official requirements) which renders
the above formula inapplicable the Agent shall notify the Borrower and the
Banks in reasonable detail of the manner (including the basis and
computation) in which the Mandatory Liquid Asset Costs Rate shall he
determined thereafter and, if appropriate,
-47-
substitute a new formula for that set out above.
-48-
THE EIGHTH SCHEDULE
FORM OF OVERDRAFT PROVIDER TRANSFER CERTIFICATE
To: Barclays Bank PLC, as Agent
Pelikan Produktions XX
Xxxxxxx Hardcopy (International) AG
OVERDRAFT PROVIDER TRANSFER CERTIFICATE
relating to the third amended and restated agreement (the "FACILITY
AGREEMENT") dated 31 July, 1997 whereby a revolving credit facility was made
available to Pelikan Produktions AG and Pelikan Hardcopy (International) AG
as borrowers by a group of banks on whose behalf Barclays Bank PLC acted as
agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to
any contrary indication, have the same meanings herein. The terms Overdraft
Provider and Overdraft Facility Transferee are defined in the schedule hereto.
2. The Overdraft Provider requests the Overdraft Facility
Transferee to accept and procure the transfer to the Overdraft Facility
Transferee the obligation to make Short-Term Advances pursuant to the
Facility Agreement by counter-signing and delivering this Overdraft Provider
Transfer Certificate to the Agent at its address for the service of notices
specified in the Facility Agreement.
3. The Overdraft Facility Transferee hereby requests the Agent
to accept this Overdraft Provider Transfer Certificate as being delivered to
the Agent pursuant to and for the purposes of Clause 30.5 of the Facility
Agreement so as to take effect in accordance with the terms thereof on the
Transfer Date or on such later date as may be determined in accordance with
the terms thereof.
4. The Overdraft Facility Transferee confirms that it has
received a copy of the Facility Agreement, together with such other
information as it has required in connection with this transaction and that
it has not relied and will not hereafter rely on the Overdraft Provider to
check or enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy, or completeness of any such information and further
agrees that it has not relied and will not rely on the Overdraft Provider to
assess or keep under review on its behalf the financial conditions,
creditworthiness, condition, affairs, status or nature of the Borrowers.
5. The Overdraft Facility Transferee hereby undertakes with the
Borrowers, the Overdraft Provider and each of the other parties to the
Facility Agreement that it will perform in accordance with their terms all
the obligations of the Overdraft Provider under the Facility Agreement after
delivery of this Overdraft Provider Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Overdraft
Provider Transfer Certificate is expressed to take effect. The Overdraft
Facility Transferee hereby makes the representations made by the Overdraft
Provider in Clause 32.8 of the Facility Agreement as though made on and as of
the date hereof.
6. The Overdraft Provider makes no representation or warranty
and assumes no responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Facility Agreement or any
document relating thereto and assumes no responsibility for the financial
condition of the Borrowers or for the performance and observance by the
Borrowers of any of their
-49-
respective obligations under the Facility Agreement or any document relating
thereto and any and all such conditions and warranties, whether express or
implied by law or otherwise, are hereby excluded.
7. The Overdraft Provider hereby gives notice that nothing
herein or in the Facility Agreement (or any document relating thereto) shall
oblige the Overdraft provider to (i) accept a re-transfer from the Overdraft
Facility Transferee of the whole or any part of its rights, benefits and/or
obligations under the Facility Agreement transferred pursuant hereto or (ii)
support any losses directly or indirectly sustained or incurred by the
Overdraft Facility Transferee for any reason whatsoever including, without
limitation, the non-performance by the Borrowers or any other party to the
Facility Agreement (or any documents relating thereto) of its obligations
under any such document. The Overdraft Facility Transferee hereby
acknowledges the absence of any such obligation as it referred to in (i) or
(ii)) above.
8. This Overdraft Provider Transfer Certificate and the rights
and obligations of the parties hereunder shall be governed by and construed
in accordance with English law.
THE SCHEDULE
1. Overdraft Provider:
2. Overdraft Facility Transferee:
3. Transfer Date:
[TRANSFEREE OVERDRAFT [TRANSFEROR OVERDRAFT
PROVIDED] PROVIDER]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF
OVERDRAFT FACILITY TRANSFEREE
Address: Telex:
Contact Name: Telefax:
Account for Payments: Telephone:
-50-
SIGNATORIES
THE BORROWERS
PELIKAN PRODUKTIONS AG
By:
--------------------------------
XXXX XXXXXXXXXX
Title:
--------------------
Address: Xxxxxxxxxxxx 000
XX-0000 Xxx
Xxxxxxxxxxx
Fax: (00-0) 0000 000
PELIKAN HARDCOPY (INTERNATIONAL) AG
By:
--------------------------------
XXXX XXXXXXXXXX
Title:
--------------------
Address: Xxxxxxxxxxxx 000
XX-0000 Xxx
Xxxxxxxxxxx
Fax: (00-0) 0000 000
-51-
THE AGENT
BARCLAYS BANK PLC
By:
--------------------------------
Name:
---------------------
Title:
--------------------
Notice Address:
Barclays Bank PLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
THE FRONTING BANK
BARCLAYS BANK PLC
By:
--------------------------------
Name:
---------------------
Title:
--------------------
Notice Address:
Barclays Bank PLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
THE OVERDRAFT PROVIDER
BARCLAYS BANK PLC
By:
--------------------------------
Name:
---------------------
Title:
--------------------
Notice Address:
Barclays Bank PLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
-52-
THE COLLATERAL AGENT
NATIONSBANK OF TEXAS, N.A.
By:
--------------------------------
XXXXXXX X. XXXXXXXXXXX, XX
Senior Vice President
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
X.X.X.
Fax: (000) 000 0000
THE DOCUMENTATION AGENT
NATIONSBANK OF TEXAS, N.A.
By:
--------------------------------
XXXXXXX X. XXXXXXXXXXX, XX
Senior Vice President
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
X.X.X.
Fax: (000) 000 0000
-53-
THE BANKS
BARCLAYS BANK PLC
By:
--------------------------------
Name:
---------------------
Title:
--------------------
Notice Address:
Barclays Bank PLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
-54-
NATIONSBANK, N.A.
By:
-------------------------------------
XXXXXXX X. XXXXXXXXXXX, XX
Senior Vice President
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
X.X.X.
Fax: (000) 000 0000
-55-
THE FIRST NATIONAL BANK OF CHICAGO
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
Notice Address:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx, Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
-56-
COMMERZBANK AG
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
Address: Atlanta Agency
Promenade Two, Suite 3500
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000 0000
-57-
DEUTSCHE BANK AG LONDON
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
Notice Address:
Deutsche Bank, A.G., New York Branch
and/or Cayman Islands Branch
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
-58-
SOCIETE GENERALE
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
Address: Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000 0000
-59-
ABN AMRO BANK, N.V.
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
Notice Address:
ABN AMRO Bank, N.V.
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
-60-
CREDIT LYONNAIS, S.A.
By:
-------------------------------------
Name:
-------------------------
Title:
-------------------------
Notice Address:
Credit Lyonnais
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
-61-
THE EXHIBIT
[FORM OF CONFIDENTIALITY AGREEMENT]
The undersigned, ____________________, a prospective
[assignee/Transferee/participant/Overdraft Facility Transferee] to that
certain Third Amended and Restated Revolving Credit Facility Agreement dated
as of 31 July, 1997 (such agreement, as so amended and restated and as it may
be amended and restated, supplemented or otherwise modified from time to
time, being the "Credit Agreement"; capitalized terms used herein without
definition shall have the meanings assigned those terms in the Credit
Agreement between Pelikan Produktions AG and Pelikan Hardcopy (International)
AG as borrowers, Barclays Bank PLC, as agent, NationsBank of Texas, N.A., as
collateral agent, NationsBank of Texas, N.A., as documentation agent, and the
Lenders party thereto, ("Prospective [assignee/-Transferee/participant/
Overdraft Facility Transferee]"), hereby agrees as follows for the benefit
of the Borrowers;
Prospective [assignee/Transferee/participant/Overdraft Facility
Transferee] agrees that all financial statements, financial
projections, operating or other data, tax returns, reports and other
information, that have been or may be provided to (i) Prospective
[assignee/Transferee/participant/Overdraft Facility Transferee], (ii) the
employees and agents of Prospective [assignee/Transferee/participant/Overdraft
Facility Transferee], and/or (iii) accountants, attorneys or other
professionals retained by such parties whether delivered by either Borrower
or otherwise shall be kept strictly confidential by such recipients, and
shall be used solely in connection with its consideration of [an assignment/
a transfer/a participation/the appointment of a new Overdraft Provider] in
respect of the Credit Agreement; PROVIDED, that Prospective [assignee/
Transferee/participant/Overdraft Facility Transferee] may, in any event,
disclose any such information:
(i) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for
discovering documents or otherwise; or
(ii) if required by any law or regulation having the force of law;
or
(iii) pursuant to any requirement or request of any fiscal. monetary,
tax, governmental or other competent authority; or
(iv) to its auditors, legal or other professional advisors; or
(v) which is in the public domain.
and unless specifically prohibited by applicable law or court order, the
prospective assignee/Transferee/or participant shall notify the Borrowers of
any disclosure pursuant to paragraphs (i), (ii) and (iii). In no event shall
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
be obligated or required to return any materials furnished by either Borrower.
This deed shall be governed by and construed and enforced in accordance
with, the laws of England.
Prospective [assignee/Transferee/participant/Overdraft Facility
Transferee] hereby irrevocably agrees for the benefit of the Borrowers that
the courts of England shall have jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of or
in connection with this deed and, for such purposes, irrevocably submits to
the jurisdiction of such courts.
-62-
Prospective[assignee/Transferee/participant/Overdraft Facility
Transferee] hereby irrevocably waives any objection which it might now or
hereafter have to the courts of England being nominated as the forum to hear
and determine any suit, action or proceeding, and to settle any disputes,
which may arise out of or in connection with this deed and agrees not to claim
that any such court is not a convenient or appropriate forum.
The submission to the jurisdiction of the courts of England shall
not (and shall not be construed so as to) limit the right of either Borrower
to take proceedings against Prospective [assignee/Transferee/participant/
Overdraft Facility Transferee] in any other court of competent jurisdiction
nor shall the taking of proceedings in any one or more jurisdiction preclude
the taking of proceedings in any other jurisdiction (whether concurrently or
not) if and to the extent permitted by applicable law,
IN WITNESS WHEREOF, this confidentiality agreement has been executed
as a deed by the Prospective
[assignee/Transferee/ participant/Overdraft Facility Transferee] delivered on
the date specified below.
_____________________, 19__
EXECUTED AND DELIVERED AS A DEED
BY [INSERT NAME IN BLOCK CAPITALS OF
PROSPECTIVE ASSIGNEE/TRANSFEREE/
PARTICIPANT/OVERDRAFT FACILITY
TRANSFEREE]
Name:
-------------------------
Title:
-------------------------
Name:
-------------------------
Title:
-------------------------
-63-
TABLE OF CONTENTS
Page
----
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. THE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 11
5. NATURE OF LENDERS' OBLIGATIONS . . . . . . . . . . . . . . . . . 11
6. UTILIZATION OF THE FACILITY . . . . . . . . . . . . . . . . . . 12
7. ISSUE OF LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . 15
8. INDEMNITY (INCLUDING BANK INDEMNITY FOR SHORT-TERM ADVANCES) . . 15
9. LETTER OF CREDIT COMMISSIONS AND FEES . . . . . . . . . . . . . 16
10. MAKING OF ADVANCES . . . . . . . . . . . . . . . . . . . . . . . 17
11. INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
12. REPAYMENT OF ADVANCES . . . . . . . . . . . . . . . . . . . . . 19
13. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
15. INCREASED COSTS . . . . . . . . . . . . . . . . . . . . . . . . 21
16. ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
17. MITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
18. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES . . . . . . . . 24
19. ACCELERATION EVENT . . . . . . . . . . . . . . . . . . . . . . . 25
20. DEFAULT INTEREST AND INDEMNITIES . . . . . . . . . . . . . . . . 26
21. CURRENCY OF ACCOUNT . . . . . . . . . . . . . . . . . . . . . . 27
22. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23. SET-OFF AND NETTING OF PAYMENTS . . . . . . . . . . . . . . . . 28
-i-
TABLE OF CONTENTS
(Continued)
24. REDISTRIBUTION OF PAYMENTS . . . . . . . . . . . . . . . . . . . 29
25. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
26. COSTS AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . 30
27. THE AGENTS AND THE LENDERS . . . . . . . . . . . . . . . . . . . 31
28. BENEFIT OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . 35
29. ASSIGNMENTS AND TRANSFERS BY THE BORROWERS . . . . . . . . . . . 35
30. ASSIGNMENTS AND TRANSFERS BY BANKS, CHANGE OF OVERDRAFT
PROVIDER . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
31. DISCLOSURE OF INFORMATION . . . . . . . . . . . . . . . . . . . 38
32. CALCULATIONS AND EVIDENCE OF DEBT . . . . . . . . . . . . . . . 38
33. REMEDIES AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . 39
34. PARTIAL INVALIDITY . . . . . . . . . . . . . . . . . . . . . . . 40
35. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
36. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . 41
37. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
38. BORROWER SECESSION . . . . . . . . . . . . . . . . . . . . . . . 42
39. GUARANTEE BY PELIKAN PRODUKTIONS AG . . . . . . . . . . . . . . 42
40. LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
41. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 44
42. WAIVERS; RATIFICATIONS . . . . . . . . . . . . . . . . . . . . . 45
-ii-
SCHEDULES
1. The Banks
2. Form of Transfer Certificates
3. Conditions Precedent
4. Utilization Request
5. Timetables
6. Form of Borrower Secession Memorandum
7. Mandatory Liquid Asset Costs Rate Formula
8. Form of Overdraft Provider Transfer Certificate
EXHIBIT
Form of Confidentiality Agreement
-iii-
