CONFORMED COPY
STERLING 6,275,000
AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT
DATED 15TH OCTOBER, 1996
between
PELIKAN SCOTLAND LIMITED
as borrower
BZW
and
NATIONSBANC CAPITAL MARKETS, INC.
as arrangers
BARCLAYS BANK PLC
as agent
NATIONSBANK OF TEXAS, N.A.
as collateral agent
NATIONSBANK OF TEXAS, N.A.
as documentation agent
and
OTHERS
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CONTENTS
CLAUSE PAGE
1. Interpretation .................................................. 1
2. The Facility .................................................... 7
3. Purpose ......................................................... 8
4. Conditions Precedent ............................................ 8
5. Nature of Lenders' Obligations .................................. 8
6. Utilisation of the Facility ..................................... 9
7. Issue of Letters of Credit and Contract Guarantee ............... 11
8. Indemnity (including Bank Indemnity for Short-Term Advances) .... 12
9. Letter of Credit and Contract Guarantee Commissions and Fees .... 13
10. Making of Advances .............................................. 14
11. Interest ........................................................ 15
12. Repayment of Advances ........................................... 16
13. Cancellation .................................................... 16
14. Taxes ........................................................... 16
15. Increased Costs ................................................. 18
16. Illegality ...................................................... 19
17. Mitigation ...................................................... 20
18. Market Disruption and Alternative Interest Rates ................ 21
19. Acceleration Event .............................................. 21
20. Default Interest and Indemnities ................................ 22
21. Currency of Account ............................................. 23
22. Payments ........................................................ 24
23. Set-off and Netting of Payments ................................. 24
24. Redistribution of Payments ...................................... 24
25. Fees ............................................................ 25
26. Costs and Expenses .............................................. 25
27. The Agents, the Arrangers and the Lenders ....................... 27
28. Benefit of Agreement ............................................ 30
29. Assignments and Transfers by the Borrower ....................... 30
30. Assignments and Transfers by Banks .............................. 30
31. Disclosure of Information ....................................... 32
32. Calculations and Evidence of Debt ............................... 33
33. Remedies and Waivers ............................................ 34
34. Partial Invalidity .............................................. 34
35. Notices ......................................................... 34
36. Counterparts .................................................... 35
37. Amendments ...................................................... 35
38. Governing Law ................................................... 36
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SCHEDULES
1. The Banks .................................................... 37
2. Form of Transfer Certificate ................................. 38
3. Conditions Precedent ......................................... 41
4. Utilisation Request .......................................... 42
5. Timetables ................................................... 43
6. Mandatory Liquid Asset Costs Rate Formula .................... 45
7. Form of Overdraft Provider Transfer Certificate .............. 47
Signatories ....................................................... 49
EXHIBIT
Form of Confidentiality Agreement ................................. 54
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THIS AMENDED AND RESTATED AGREEMENT is made the 15th day of October, 1996
BETWEEN:
(1) PELIKAN SCOTLAND LIMITED (the "BORROWER");
(2) BZW and NATIONSBANC CAPITAL MARKETS, INC. (together with the Documentation
Agent, the "ARRANGERS");
(3) BARCLAYS BANK PLC, as agent (the "AGENT");
(4) 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");
(5) NATIONSBANK OF TEXAS, N.A. as documentation agent (the "DOCUMENTATION
AGENT");
(6) BARCLAYS BANK PLC as fronting bank (the "FRONTING BANK");
(7) BARCLAYS BANK PLC as overdraft provider (the "OVERDRAFT PROVIDER"); and
(8) THE FINANCIAL INSTITUTIONS named in the First Schedule (the "BANKS").
WHEREAS the parties hereto wish further to amend and restate the Revolving
Credit Facility dated 24th February, 1995 as previously amended and restated on
2nd June, 1995 (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 sterling at or about 11.00 a.m. on a particular day;
"APPLICABLE MARGIN" has the meaning given to it in the Credit Agreement;
"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,
such Bank's share will 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 Advances which it is obliged, or may become
obliged, to make pursuant to Clause 6.5 in respect of (a) any outstanding
Short-Term Advances at close of business on the day before the proposed
Utilisation Date and (b) any Short-Term Advance requested to be made by no
later than the Specified Time on such Utilisation Date;
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"AVAILABLE FACILITY" means, at any time, the aggregate of the Available
Commitments at such time adjusted, in the case of a proposed Utilisation
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
Utilisation 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)
Letters of Credit and/or Contract Guarantees which, pursuant to any
other Utilisation, 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 Utilisation Date relating to such proposed Utilisation;
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, the Overdraft
Provider, 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 Utilisation Date relating to
such Utilisation;
"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;
"BZW" means a division of Barclays Bank PLC;
"CLOSING DATE" has the meaning given to it in the Credit Agreement;
"COLLATERAL DOCUMENTS" has the meaning given to 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;
"CONTRACT GUARANTEES" means guarantees, indemnities, performance bonds and
similar undertakings issued or to be issued by the Fronting Bank pursuant
to Clause 7, (in each case in such form as may be requested by the Borrower
and acceptable to the Fronting Bank) in respect of the obligations of the
Borrower or its Subsidiaries, to any third party;
"CONTACT GUARANTEE 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 be payable by the Fronting Bank under each Contract Guarantee
outstanding at such time and (ii) the aggregate amount of all claims
honoured by the Fronting Bank and not theretofore reimbursed by the
Borrower hereunder;
"CREDIT AGREEMENT" means the amended and restated credit agreement of even
date hereof between Nu-Kote Holding, Inc. as guarantor, Nu-Kote
International, Inc. as borrower,
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Barclays Bank PLC as documentation agent, NationsBank of Texas, N.A. as
administrative agent and collateral agent and others;
"DEBENTURE" means the Debenture dated 24th February, 1995 between the
Company and the Agent;
"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 or Contract
Guarantee, the date on which the maximum aggregate liability thereunder is
to be reduced to zero;
"FACILITY" means the revolving cash advances and letter of credit and
contract guarantee facility granted to the Borrower in this Agreement;
"FACILITY OFFICE" means, in relation to any of the Agent, the Fronting
Bank, the Overdraft Provider or the Banks, the office 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) 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
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) 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 Debenture, the Hedging Documents and any other
document designated as such in writing by the Agent and the Borrower;
"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 the Borrower with a Bank as have been heretofore (and/or as may
hereafter be) agreed in writing between the Borrower and the Agent to
constitute the Hedging Documents;
"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
honoured by the Fronting Bank and not theretofore reimbursed by the
Borrower hereunder;
"LENDERS" means the Banks and the Overdraft Provider;
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"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 falls to be determined in relation to such unpaid sum;
"MANDATORY LIQUID ASSET COSTS RATE" means in relation to any Advance or
unpaid sum denominated in sterling, the rate determined in accordance with
the Sixth Schedule;
"NU-KOTE GUARANTEES" means the guarantees of 24th February, 1995 given by
the Guarantors in favour of the Agent for itself and on behalf of the
Lenders;
"OBLIGORS" means the Borrower and the Guarantors and "OBLIGOR" means any
one of them;
"OPTIONAL CURRENCY" means dollars, deutschmarks and Swiss francs;
"ORIGINAL STERLING AMOUNT" means:
(a) the principal amount (in the case of an Advance), or the face value
(in the case of a Letter of Credit or a Contract Guarantee), of a
Utilisation denominated in sterling; or
(b) the principal amount (in the case of an Advance), or the face value
(in the case of a Letter of Credit or a Contract Guarantee), of a
Utilisation denominated in an Optional Currency, translated into
sterling on the basis of the Agent's Spot Rate of Exchange on the date
of receipt by the Agent of the Utilisation Request for that
Utilisation.
"OUTSTANDINGS" means, at any time, the aggregate of:
(i) the principal amount of each outstanding Advance at such time;
(ii) the L/C Outstandings at such time; and
(iii) the Contract Guarantee Outstanding 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; or
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(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 Seventh 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
(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 Borrower and the Agent as is
contemplated in Clause 30.5;
"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 bank as defined in Section 890A of the Income
and Corporation Taxes Act 1988 and which is within the charge to U.K.
corporation tax as regards any interest received by it under this
Agreement;
"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 offices of such other bank or banks as may from time to time
be agreed between the Borrower and the Agent acting on the instructions of
the Requisite Lenders;
"REPAYMENT DATE" means, in relation to any 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 Utilisation Request, the
aggregate principal amount of the Advances or, as the case may be, face
amount of the Letter of Credit therein requested;
"SHORT-TERM ADVANCE" means any Advance denominated in sterling made by the
Overdraft Provider in that capacity pursuant to the terms hereof;
"SWISS FACILITY" means the amended and restated revolving credit and letter
of credit facility of even date hereof made available to Pelikan
Produktions AG and Pelikan Hardcopy (International) AG by Barclays Bank
PLC, NationsBank of Texas, N.A. and others;
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"SUBSIDIARY" has the meaning given to it in the Credit Agreement;
"TERM" means, save as otherwise provided herein, in relation to any
Advance, the period for which such Advance is borrowed (as specified in the
Utilisation Request relating thereto) and, in relation to any Letter of
Credit or Contract Guarantee, the period from the date on which such Letter
of Credit or Contract Guarantee (as the case may be) is issued until its
Expiry Date (as specified in the Utilisation Request relating thereto);
"TERMINATION DATE" means the day which is sixty months after the Closing
Date (as defined in the Credit Agreement);
"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 Borrower 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;
"UTILISATION" means a utilisation of the Facility hereunder;
"UTILISATION DATE" means the date of a Utilisation, being the date on which
the Advances in respect thereof are to be made or the Letter of Credit or,
as the case may be, Contract Guarantee in respect thereof is to be issued;
and
"UTILISATION 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 and permitted assigns in accordance with their
respective interests;
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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 (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 be imposed in place thereof from time to time.
1.3 "L" and "STERLING" denote the lawful currency of the United Kingdom, "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 "CHF" and "SWISS FRANCS" denote the lawful currency of
Switzerland.
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 from 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.
2. THE FACILITY
2.1 The Lenders grant to the Borrower, upon the terms and subject to the
conditions hereof, a revolving cash advance, letter of credit and contract
guarantee facility in an aggregate Original Sterling Amount of L6,275,000.
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$10,000,000;
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(ii) in the case of Utilizations denominated in deutschmarks, exceed
DM2,666,310; and
(iii) in the case of Utilizations denominated in Swiss francs, exceed
CHF3,260,741.
2.3 Notwithstanding Clause 2.2 above, that part of the Facility available for
Utilisation by way of Letters of Credit is limited to an Original Sterling
Amount of L3,000,000.
2.4 That part of the Facility available for Utilisation by way of Short-Term
Advances is limited to L1,882,000.
2.5 Notwithstanding Clause 2.2 above, that part of the Facility available for
utilisation by way of Contract Guarantees is limited to an Original
Sterling Amount of L1,000,000.
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 including, without
limitation, Permitted Acquisitions (as defined in the Credit
Agreement);
(iii) the issue of Letters of Credit;
(iv) the issue of Contract Guarantees in relation to liabilities of the
Borrower or the Borrower's Subsidiaries, to third parties; and
(v) refinancing existing indebtedness and other indebtedness, including
reimbursement to the Fronting Bank of any amounts drawn under any
Letters of Credit or paid under any Contact Guarantees,
and, accordingly, the Borrower shall apply all amounts raised by it
hereunder in or towards satisfaction of such purposes.
3.2 APPLICATION OF AMOUNTS
Without prejudice to the obligations of the Borrower under Clause 3.1, the
Agents and the Lenders shall not be obliged to concern themselves with the
application of amounts raised by the Borrower hereunder.
4. CONDITIONS PRECEDENT
The Borrower may not utilise the Facility unless the Agent has confirmed to
the Borrower 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.
5. NATURE OF LENDERS' OBLIGATIONS
5.1 The obligations of each Lender hereunder are several.
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5.2 The failure by a Lender to perform its obligations hereunder shall not
affect the obligations of any other Lender or the 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. UTILISATION 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 or Contract Guarantee will be issued
by the Fronting Bank or, as the case may be, Short-Term Advances will be
made by the Overdraft Provider to the Borrower if:
(i) no later than the specified time in respect of the proposed
Utilisation, the Agent or, in the case of a Short-Term Advance, the
Overdraft Provider, has received from the Borrower a Utilisation
Request therefor;
(ii) the proposed Utilisation Date in respect of such Utilisation Request
is a business day;
(iii) the Requested Amount is:
(a) in the case of a Utilisation 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 an
Original Sterling Amount of less than L1,000,000 is outstanding
at such time is:
(A) if the currency is sterling, a minimum amount of L500,000
and in additional integral multiples of L1,000,000; or
(B) if the currency is an Optional Currency, a minimum Original
Sterling Amount of L500,000 (or an appropriate amount
thereof) and in additional integral multiples of an Original
Sterling Amount of L1,000,000 (or an approximate amount
thereof); or
(2) if an Advance (other than a Short-Term Advance) of less than an
Original Sterling Amount of L1,000,000 is outstanding at such
time is:
(A) if the currency is sterling, a minimum amount of L1,000,000
and in additional integral multiples of L500,000; or
(B) if the currency is an Optional Currency, a minimum Original
Sterling Amount of L1,000,000 (or an approximate amount
thereof) and in additional integral multiples of an Original
Sterling Amount of L500,000 (or an approximate amount
thereof); or
(b) in the case of a Utilisation 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 Utilisation does not exceed an Original Sterling Amount
of L3,000,000; or
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(c) in the case of a Utilisation 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 L1,882,000;
(iv) in the case of a Utilisation to be denominated in an Optional
Currency, its principal amount (in the case of an Advance) or its face
value (in the case of a Letter of Credit or a Contract Guarantee),
when aggregated with the aggregate principal amounts and/or the
aggregate 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 Borrower in such Utilisation Request will
end on a business day which is or precedes the Termination Date and
which in respect of Advances will be:
(a) in respect of any Advance (other than a Short-Term Advance) with
a proposed Utilisation Date falling during the period expiring on
the earlier of the date (1) that is two (2) months after the
Closing Date or (2) on which the Arrangers determine, in their
sole discretion, that the syndication of this Agreement is
complete, a period not exceeding 14 days;
(b) in respect of an Advance (other than a Short-Term 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 or Contract Guarantee:
(1) if denominated in sterling, 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).
6.2 If and whenever, on the occasion of a Utilisation, the Banks are required
to make Advances or the Fronting Bank is required to issue a Letter of
Credit or Contract Guarantee 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 or Contract Guarantee (as the case may be)
to be so issued shall be allocated to, and apportioned among, the Banks
rateably to their respective Available Commitments for such Utilisation
Provided that no amount shall be allocated to any Bank in respect of any
Utilisation if such Bank's Commitment will be cancelled pursuant to the
terms hereof prior to or during the Term of the proposed Advances or the
term of the proposed Letter of Credit or Contract Guarantee (as the case
may be).
6.3 Each Lender shall, subject to the terms hereof, be obliged, through its
Facility Office, to make an Advance on the proposed Utilisation Date in a
principal amount equal to the amount
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allocated to, or in the case of a Short-Term Advance, requested from 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 request by notice to the Borrower (through the
Agent) at any time when the Borrower has an outstanding Short-Term Advance
made by such Overdraft Provider that the Banks make an Advance to the
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 the 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 Utilisation
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 the 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 authorised to pay
the proceeds of such Advance to the Overdraft Provider on behalf of the
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 and Contract
Guarantee 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 and
Contract Guarantee Outstandings as Fronting Bank.
7. ISSUE OF LETTERS OR CREDIT AND CONTRACT GUARANTEES
7.1 Each Utilisation Request in respect of a Letter of Credit or Contact
Guarantee 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 or Contract Guarantee (as the case may be) should be
delivered and shall have the proposed form of the Letter of Credit or
Contract Guarantee (as the case may be) attached to it.
7.2 Subject to the provisions hereof, the Fronting Bank shall issue a Letter of
Credit or Contract Guarantee in accordance with Clause 7.1 if:
(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
Utilisation Date to the same extent as though made on and as of such
Utilisation Date, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case, such
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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 or Contract Guarantee (as the
case may be) has been agreed between the 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 (the amount so demanded being herein
referred to as the "AMOUNT DEMANDED") is made under a Letter of Credit or
Contract Guarantee (as the case may be) by the beneficiary thereof, the
Agent shall notify the Borrower of such demand and make demand of the
Borrower for an amount equal to the Amount Demanded.
8.2 The 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 business day during which the
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
business day following.
8.3 The 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 or Contract
Guarantee 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 or Contract Guarantee (as the case may be) in
connection with any such Letter of Credit or Contract Guarantee (as the
case may be) as certified by the Fronting Bank to the 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 or
Contract Guarantee (as the case may be) issued at its request Provided that
the 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 any
documents and certificates required to be delivered under any Letter of
Credit or Contract Guarantee (as the case may be) have been delivered and
that they comply on their face with the requirements of that Letter of
Credit or Contract Guarantee (as the case may be) before making any payment
thereunder.
8.4 The Fronting Bank shall be entitled to make any payment under any Letter of
Credit or Contract Guarantee (as the case may be) for which a demand has
been made without any reference to or further authority from the Borrower
at whose request such Letter of Credit or Contract Guarantee (as the case
may be) 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 or
Contract Guarantee (as the case may be) and shall be entitled to assume
that any person expressed in any Letter of Credit or Contract Guarantee (as
the case may be) or in any notice served pursuant to any such Letter of
Credit or Contract Guarantee (as the case may be) 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 authorised to do so
unless it has actual knowledge that such person is not so entitled or not
so authorised; accordingly, it shall not (save as provided in this Clause
8) be a
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defence to any demand made of the Borrower, nor shall the Borrower's
obligations 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 any documents and
certificates required to be delivered under any Letter of Credit or
Contract Guarantee (as the case may be) have been delivered and that they
comply on their face with the requirements of that Letter of Credit or
Contract Guarantee (as the case may be) before making any payment
thereunder.
8.5 Save as otherwise provided in this Clause 8, the obligations of the
Borrower to the Fronting Bank in connection with any such Letter of Credit
or Contract Guarantee (as the case may be) 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 the 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 the
Borrower to the Fronting Bank and the Overdraft Provider in respect of a
Letter of Credit or Contract Guarantee (as the case may be) or Short-Term
Advance but which is not paid on the due date therefor.
9. LETTER OF CREDIT AND CONTRACT GUARANTEE COMMISSIONS AND FEES
9.1 The Borrower agrees to pay the following amounts with respect to each
Letter of Credit issued by the Fronting Bank hereunder at its request:
(i) 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 cent. 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;
(ii) 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;
(iii) a fronting fee, for the account of the Fronting Bank, of 0.20 per
cent. per annum on the face amount of such Letter of Credit in
arrear on and to (but excluding) each
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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
(iv) with respect to the issuance, any amendment and any transfer thereof
and each drawing thereunder, in each case reasonable documentary and
processing charges in 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.
9.2 In respect of each Contract Guarantee, a commission equal to the higher of
L100 and 0.75% per annum on the weighted average maximum amount available
from time to time to be paid under such Contract Guarantee. An amount of
such commission equal to 0.55% per annum on the weighted average maximum
amount available from time to time to be paid under such Contract Guarantee
shall be paid to the Agent for the account of each Bank 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 30th June,
1995 in respect of any Contract Guarantee issued prior to such date. The
balance of such commission shall be paid to the Fronting Bank for its own
account in arrear on and to (but excluding) each 31st March, 30th June,
30th September and 31st December in each year during the term of such
Contract Guarantee and on the Expiry Date thereof, the first such payment
to be made on 30th June, 1995 in respect of any such Contract Guarantee
issued prior to such date.
10. MAKING OF ADVANCES
10.1 If the Agent notifies any Bank or the Overdraft Provider has been requested
to make any Advance (as the case may be) in accordance with Clause 6 that
it is to make any Advance, and if on the proposed Utilisation 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 are true in all material respects on and as of such
Utilisation Date to the same extent as though made on and as of such
Utilisation 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 Utilisation 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 to the 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 Utilisation Date of an Advance to be
denominated in an Optional Currency, the Agent receives notice from a
Lender that:
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(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:-
(a) the Agent shall promptly and in any event before 10.00 a.m. on that
Utilisation Date notify the Borrower;
(b) if the Agent receives notice from the Borrower by 11.00 a.m. on the
relevant Utilisation Date, that Advance shall not be made; and
(c) if the Agent does not receive any notice under sub-paragraph (b)
above, then that Advance shall be denominated in sterling in an amount
equal to its Original Sterling Amount.
10.3 The Agent shall notify each relevant Party of any applicable Agent's Spot
Rate of Exchange or Original Sterling Amount as soon as practicable after
it is ascertained.
11. INTEREST
11.1 On the Repayment Date relating to each Advance made to it the Borrower
shall pay accrued interest on that Advance.
11.2 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.
11.3 The rate of interest applicable to a Short-Term Advance shall be the rate
per annum determined by the Agent to be the sum of:
(i) the base rate of the Overdraft Provider; and
(ii) the higher of (a) the Applicable Margin and (b) one per cent.
11.4 The Agent shall promptly notify the Borrower and the relevant Banks of each
determination of an interest rate made by it pursuant to this Clause 11.
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12. REPAYMENT OF ADVANCES
12.1 The Borrower shall repay each Advance made to it in full on (or, in the
case of a Short-Term Advance, if such Borrower so elects, before) the
Repayment Date relating thereto.
12.2 The Borrower shall not 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 Borrower 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 L1,300,000 and in additional integral multiples of L1,000,000) of
the Available Facility. Any such cancellation shall reduce the Commitment
of each Bank rateably.
13.2 Any notice of cancellation given by the Borrower 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) the 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 Borrower 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 Borrower gives notice of cancellation pursuant to Clause 13.3, it
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 and Contract
Guarantees (or, as the case may be and in each case, the relevant
proportion thereof) will be secured in a manner acceptable to such Lender,
it being understood that in no event shall any Letter of Credit or Contract
Guarantee 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 and Contract Guarantee
issued by the Fronting Bank shall be acceptable to the Fronting Bank.
13.5 If 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 Borrower 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 Borrower fails 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 13.1, MUTATIS
MUTANDIS.
14. TAXES
14.1 All payments to be made by the 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 the Borrower is required to make
such a payment subject to the deduction or withholding of tax, in which
case the Borrower shall promptly upon becoming aware thereof notify the
Agent
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thereof and the 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 the 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 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 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 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 the Borrower pursuant to Clause 14.1 hereof,
it shall promptly notify the Borrower of the availability of such refund
and shall, within 30 days after receipt of a request by the Borrower, apply
for such refund or shall furnish to the Borrower such forms, duly
completed, as will enable the Borrower to claim such refund on its own
behalf. The Borrower shall reimburse such Lender for all costs reasonably
incurred by it in applying for seeking such refund. If any Lender
determines that it has received a refund in respect of any taxes paid by
the Borrower pursuant to Clause 14.1 hereof, it shall repay such refund
within 30 days after receipt to the Borrower to the extent of amounts not
in excess of the amounts actually paid by the 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 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 the Borrower, at the Borrower's
expense in contesting any taxes that the Borrower is required to bear
pursuant to Clause 14.1 hereof and shall pay to the 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.
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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, or Letters of Credit and/or
one or more Contract Guarantees 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, (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 and/or (c) all or any
of the contract guarantees comprised in a class of contract
guarantees formed by or including the Contract Guarantee issued or to
be issued 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 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 any Contract Guarantee 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 the Borrower 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, the Borrower
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 Borrower and the
Agent by that Lender, shall, 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
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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 the Borrower 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 the Borrower 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 Borrower 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 Borrower the right to inspect the records, files or books of any
Lender.
15.3 The Borrower 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 Clauses 15.1 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 application of the Mandatory Liquid Asset
Costs Rate.
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 and/or all or any of the Letters of Credit or
Contract Guarantees issued or to be issued by it hereunder then that Lender
shall, promptly after becoming aware of the same, deliver to the Borrower
through the Agent a certificate to that effect and, unless such illegality
is avoided in accordance with
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Clause 17 taking into account any grace period allowed by any such
order, request or requirement:
(i) such Lender shall not thereafter be obliged to make any Advances or
issue any letters of Credit or Contract Guarantees (as the case may
be) and the amount of its Commitment shall be immediately reduced to
zero; and
(ii) if the Agent on behalf of such Lender so requires, the Borrower 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 or Contract Guarantees (as the case may be) will be
secured in a manner acceptable to such Lender, it being
understood that in no event shall any Letter of Credit or
Contract Guarantees (as the case may be) or the obligations of
the Fronting Bank thereunder be cancelled and security in
sterling equal to the maximum amount that can be drawn under each
Letter of Credit or paid under each Contract Guarantee (as the
case may be) 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 Borrower 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 Borrower 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 the Borrower 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 Borrower 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 Borrower) 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 Borrower hereby agrees 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 Utilisation 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 Borrower shall enter into negotiations with a
view to agreeing 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 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 Asset 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 Borrower
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 the Borrower to provide security in respect of each
Letter of Credit and Contract Guarantee issued at its request in
a manner acceptable to the Fronting Bank in the currency of each
such Letter of Credit or Contract Guarantee, it being
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understood that in no event shall any Letter of Credit or
Contract Guarantee 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 or paid under each
Contract Guarantee at such time shall be Acceptable to the
Fronting Bank.
20. DEFAULT INTEREST AND INDEMNITIES
20.1 If any amount of principal, Commitment Fee, or interest due and payable by
the Borrower hereunder is not paid on the due date therefor, the Borrower
does not reimburse the Fronting Bank for any drawing under a Letter of
Credit hereunder on the due date therefor, the Borrower does not reimburse
the Fronting Bank for any claim under a Contract Guarantee hereunder on the
due date therefore, any fees (other than the Commitment Fee) and other
amounts payable by the Borrower hereunder are not paid within ten days of
the due date therefor, or if any sum due and payable by the 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 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 per cent., 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 per cent., 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 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 per cent. 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 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 shall
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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 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 a person receives an amount in respect of the 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) the 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,
the Borrower shall forthwith on demand pay to that person an amount
in the contractual currency equal to the deficit; and
(iii) the Borrower shall pay to the person concerned on demand any exchange
costs and taxes payable in connection with any such conversion.
The 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 the Borrower in
accordance with 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 sterling.
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22. PAYMENTS
22.1 On each date on which this Agreement requires an amount to be paid by the
Borrower or any of the Lenders hereunder, the 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 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 Lender, 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.
22.3 All payments required to be made by the 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.
22.4 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 The Borrower authorises each Lender upon the occurrence of an Event of
Default and consequent acceleration of the obligations of the Borrower
hereunder pursuant to Clause 19 hereof to apply any credit balance to which
the Borrower is entitled on any account of the Borrower with that Lender in
satisfaction of any sum due and payable from the Borrower to such Lender
hereunder but unpaid; for this purpose, each Lender is authorised 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 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 the
Borrower pursuant to Clause 22.1, the Agent may make available such payment
to the Borrower by application:
(i) first, in or towards payment the same day of any amount then due from
the 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 the
Borrower with such Lender in London as the 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
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of accounts or otherwise) in respect of its portion of any payment (a
"RELEVANT PAYMENT") to be made under this Agreement by the 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 Borrower to such Recovering
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 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
The Borrower 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 arrear 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, Utilisations are taken at
their Original Sterling Amount.
26. COSTS AND EXPENSES
26.1 Except as otherwise agreed in writing by the Agents, Arrangers and the
Borrower, whether or not the Closing Date shall occur, the Borrower shall,
on demand of an Agent or an Arranger, reimburse such Agent or, as the case
may be, such Arranger to the extent not recovered under any other Loan
Documents (as defined in the Credit Agreement) or other Finance Documents,
for:
(i) all reasonable costs of furnishing all opinions required hereunder by
counsel for the Borrower (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 Borrower's
compliance with all agreements and conditions contained herein or in
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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 and Contract Guarantee issued, thereunder and any
amendments and waivers thereto;
(iii) all the actual costs and expenses of creating and perfecting any
encumbrance in favour 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 reasonably fees
and expenses of legal counsel to such Agent;
(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
work-out or collection of any of the obligations of the Borrower
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 such Arranger in connection
with the negotiation, closing and syndication of the Finance
Documents Provided that the amount of all such out-of-pocket
expenses incurred by such Arranger (and the administrative agent
under the Credit Agreement and all other Loan Documents (as defined
in the Credit Agreement)) shall not in the aggregate exceed
US$50,000; 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 and Contract Guarantees hereunder.
26.2 If the Borrower fails to perform any of its 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
Borrower 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, the Borrower 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 Finance 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
Borrower or any of their respective subsidiaries (the "INDEMNIFIED
LIABILITIES") Provided that the Borrower shall have no obligation under
this Clause 26.3 to any Indemnitee arising from
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the fraud, gross negligence, wilful misconduct or wilful breach of this
Agreement or any Finance Document by any party hereto and its related
Indemnitees.
27. THE AGENTS, THE ARRANGERS AND THE LENDERS
27.1 The Arrangers and 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 authorises 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
(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 Lender 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,
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) until it has received from such Lender
a notice designating some other office of such Lender 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 Borrower upon a certificate signed by
or on behalf of the Borrower;
(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
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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 be
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.
27.4 Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent, the Collateral Agent nor any Arranger 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
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(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 wilful misconduct, in
acting in its capacity as agent hereunder.
27.6 The Agent, the Collateral Agent and the Arrangers do not accept any
responsibility for the accuracy and/or completeness of any information
supplied by the Borrower in connection herewith or for the legality,
validity, effectiveness, adequacy or enforceability of this Agreement or
any other Finance Document and the Agent, the Collateral Agent, and the
Arrangers 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, the Collateral
Agent or any Arranger any claim it might have against any of them in
respect of the matters referred to in Clause 27.6.
27.8 The Agent, the Collateral Agent and each of the Arrangers may accept
deposits from, lend money to and generally engage in any kind of banking
or other business with the 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 Clause 27.9, then (i) the retiring Agent shall be
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 Borrower
and, accordingly, each Lender warrants to the Agent, the Collateral Agent
and the Arrangers that it has not relied on and will not hereafter rely on
the Agent, the Collateral Agent and the Arrangers 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 Borrower 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, the Collateral Agent and the Arrangers 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 the
Borrower.
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27.12 In acting as agent, collateral agent and/or arrangers for the Lenders,
the agency division of each of the Agent, the Collateral Agent and each
Arranger 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, the Collateral Agent or, as
the case may be, any Arranger should act for the Borrower in any capacity
in relation to any other matter, any information given by the Borrower to
the Agent, the Collateral Agent or, as the case may be, such Arranger in
such other capacity may be treated as confidential by the Agent, the
Collateral Agent or, as the case may be, such Arranger.
28. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and ensure to the benefit of each
party hereto and its or any subsequent successors, Transferees, Overdraft
Facility Transfees and permitted assigns.
29. ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
30. ASSIGNMENTS AND TRANSFERS BY BANKS
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 Swiss Facility;
(b) without the prior written consent of the Borrower, the Fronting
Bank, the Overdraft Provider and the Agent, such consent not to
be unreasonably withheld or delayed;
(c) otherwise than to a Qualifying Lender; and
(d) if the result thereof, at the time of such transfer or
assignment or immediately thereafter, would be that the 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
(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;
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(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 participant is a Qualifying Lender:
(e) such Bank shall be solely responsible for any withholding taxes
or filing or reporting requirements relating to such
participation and shall hold harmless the Borrower and the Agent
against the same; 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, the Arrangers 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, the Arrangers and
the other Banks shall not be obliged to recognise 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 Borrower 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:
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder, the Borrower 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 Borrower 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 Borrower and such Transferee have assumed and/or
acquired the same in place of the Borrower and such Bank;
(iii) the Agent, the Arrangers, such Transferee and the other Banks
shall acquire the same rights 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
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32
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(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 or Contract
Guarantee.
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 The Borrower may, at any time and from time to time, upon notice to the
Agent, request that a different Lender specified by the Borrower 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 Borrower 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 Borrower 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 Borrower 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 Arrangers, 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.
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 Borrower
(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
Borrower in connection with any
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33
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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 a 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 Borrower 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 365 days or (in the case of interest
payable on an amount denominated in an Optional Currency) 360 days and the
actual number of days elapsed.
32.2 Letter of Credit and Contract Guarantee commission in respect of any Letter
of Credit or Contract Guarantee, and any period of the Term thereof
determined pursuant to Clause 9, shall be calculated on the basis of a year
of 365 days or (in the case of a Letter of Credit or Contract Guarantee
denominated in an Optional Currency) 360 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 which such sum relates) and the
face amount of any Letter of Credit issued or Contract Guarantee (and each
Lender's share therein), (ii) the amount of all principal, interest and
other sums due or to become due from the 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 proceeding 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 Borrower therein
recorded.
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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.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent, the Arrangers 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 of 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 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
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35
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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 the Borrower shall be signed by the person or persons
authorised by the Borrower in the certificate delivered pursuant to the
Third Schedule of the Original Agreement 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 Borrower.
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.
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 Borrower; 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 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 Borrower; 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 Borrower 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 Borrower. 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 Borrower. No amendment, modification, termination, or
waiver of any Finance Document that releases any guarantor or releases any
collateral under the Debenture not otherwise permitted under the Credit
Agreement or the Debenture shall be effective unless evidenced by a writing
signed by or on behalf of Banks having 80 per cent. 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
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36
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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 the
Borrower shall entitle the 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 Borrower.
38. GOVERNING LAW
This Agreement shall be governed by, and shall be construed in accordance
with, English law.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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37
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THE FIRST SCHEDULE
THE BANKS
BANK COMMITMENT (L)
Barclays Bank PLC 878,500.00
NationsBank, N.A. 2,073,887.50
Commerzbank AG 627,500.00
Deutsche Bank AG 627,500.00
The First National Bank of Chicago 627,500.00
Societe Generale 618,087.50
ABN AMRO Bank, N.V. 411,012.50
Credit Lyonnais, S.A. 411,012.50
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38
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THE SECOND SCHEDULE
Form of Transfer Certificate
To: Barclays Bank PLC
Pelikan Scotland Limited
TRANSFER CERTIFICATE
relating to the amended and restated agreement dated 15th October, 1996 (the
"FACILITY AGREEMENT") whereby a revolving credit facility was made available to
Pelikan Scotland Limited as borrower 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 summarises 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 by counter-signing and delivering this Transfer Certificate to the
Agent at its address for 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
Borrower.
5. The Transferee hereby undertakes with the Borrower, 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.
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39
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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 Borrower
or for the performance and observance by the Borrower of any of its
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 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
Borrower 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:
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Account for Payments:
Telex:
Telefax:
Telephone:
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41
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THE THIRD SCHEDULE
CONDITIONS PRECEDENT
Each of the following:
1. A certificate of the secretary or a director of the 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 the Borrower:
(a) approving the terms of this Agreement and all other documents to be
executed by the Borrower in connection herewith; and
(b) authorising 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 the Borrower certifying that the utilisation
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 authorised by the
resolutions referred to in paragraph 2(b) above.
5. A certificate of a director of the 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 Supplemental 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 the Borrower
shall be certified by a director or the secretary of the 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
UTILISATION REQUEST
From: Pelikan Scotland Limited
To: [Barclays Bank PLC]/[Overdraft Provider]
Dated:
Dear Sirs,
1. We refer to the amended and restated agreement dated 15th October, 1996
(the "Facility Agreement") and made between Pelikan Scotland Limited as
borrower, BZW and NationsBanc Capital Markets, Inc. as arrangers, 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/Contract Guarantee]* as follows:
(i) Aggregate *[principal/face] amount:
(ii) Utilisation Date:
(iii) Term:
(iv) Currency:
(v) *[Repayment Date/Expiry Date]:
3. *[The proceeds of this Utilisation should be credited to [insert account
details]]/[The Letter of Credit/Contract Guarantee should be issued in
favour 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 SCOTLAND LIMITED
* Delete as appropriate
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THE FIFTH SCHEDULE
TIMETABLES
UTILISATION BY MEANS OR ADVANCES OTHER THAN SHORT-TERM ADVANCES
"D" - Utilisation Date
"Bs" - Banks
"A" - Agent
"( )" - Clause number of Agreement
1. Utilisation 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 (1.1) D-2 11.00 a.m.
UTILISATION BY MEANS OF SHORT-TERM ADVANCES
"D" - Utilisation Date
"OP" - Overdraft Provider
"( )" - Clause number of Agreement
Utilisation Request to OP (6.1) D 9.30 a.m.
UTILISATION BY MEANS OF LETTERS OF CREDIT
"D" = Utilisation Date
"D-x" = x business days prior to Utilisation Date
"Bs" = Banks
"A" = Agent
"( )" = Clause number of Agreement
1. Utilisation Request to A (6.1) D-3 9.30 a.m.
2. Bs to have agreed identity of D-3 3.00 p.m.
recipient of Letter of Credit (7.2(iii))
3. Where applicable, form of Letter D-3 3.00 p.m.
of Credit/Contract Guarantee to be agreed (7.2(iv))
4. A to notify Bs of allocations (6.4) D 10.00 a.m.
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44
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5. Letter of Credit/Contract Guarantee to be
issued (7.2) D 3.00 p.m.
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45
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THE SIXTH 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 (recognised 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 (recognised 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
(recognised 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 circumstances (including the imposition of
alternative or additional official requirements) which renders the above
formula inapplicable the Agent shall notify the Borrower
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46
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and the Banks in reasonable detail of the manner (including the basis and
computation) in which the Mandatory Liquid Asset Costs Rate shall be
determined thereafter and, if appropriate, substitute a new formula for that
set out above.
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THE SEVENTH SCHEDULE
FORM OF OVERDRAFT PROVIDER TRANSFER CERTIFICATE
To: Barclays Bank PLC, as Agent
Pelikan Scotland Limited
OVERDRAFT PROVIDER TRANSFER CERTIFICATE
relating to the amended and restated agreement (the "FACILITY AGREEMENT")
dated 15th October, 1996 whereby a revolving credit facility was made
available to Pelikan Scotland Limited as borrower 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 Borrower.
5. The Overdraft Facility Transferee hereby undertakes with the Borrower,
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
Borrower or for the performance and observance by the Borrower of any of
their respective obligations
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48
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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 Borrower 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 he governed by and construed in
accordance with English law.
THE SCHEDULE
1. Overdraft Provider:
2. Overdraft Facility Transferee:
3. Transfer Date:
[TRANSFEROR OVERDRAFT [TRANSFEREE OVERDRAFT
PROVIDER] PROVIDER]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF
OVERDRAFT FACILITY TRANSFEREE
Address: Telex:
Contact Name: Telefax:
Account for Payments: Telephone:
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SIGNATORIES
THE BORROWER
PELIKAN SCOTLAND LIMITED
By: XXXX XXXXXXXXXX
Address: Xxxxxxxxxxxx 000
XX-0000 Xxx
Xxxxxxxxxxx
Fax: (00-0)0000 000
THE ARRANGERS
BZW
By: XXXXX XXXXXX
Address: Xxxxxx Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
NATIONSBANC CAPITAL MARKETS, INC.
By: XXX XXXXXX
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000 0000
THE AGENT
BARCLAYS BANK PLC
By: XXXXX XXXXXX
Address: Xxxxxx Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
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THE COLLATERAL AGENT
NATIONSBANK OF TEXAS, N.A.
By: XXX XXXXXXX
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: XXX XXXXXXX
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
X.X.X.
Fax: (000) 000 0000
THE FRONTING BANK
BARCLAYS BANK PLC
By: XXXXX XXXXXX
Address: Xxxxxx Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
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THE OVERDRAFT PROVIDER
BARCLAYS BANK PLC
By: XXXXX XXXXXX
Address: Xxxxxx Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
THE BANKS
BARCLAYS BANK PLC
By: XXXXX XXXXXX
Address: Xxxxxx Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
NATIONSBANK, N.A.
By: XXX XXXXXXX
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
X.X.X.
Fax: (000) 0000 0000
THE FIRST NATIONAL BANK OF CHICAGO
By: XXXXXXX XXXXX
Address: Geographical Credit
One First Xxxxxxxx Xxxxx, Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000 0000
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COMMERZBANK AG
By: X. XXXXXX X. XXXXXXX
Address: Atlanta Agency
Promenade Two, Suite 3500
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000 0000
DEUTSCHE BANK AG LONDON
By: XXXX XXXXXXXXXX XXXX XXXXXXX
Address: 0-0 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: (0000) 000 0000
SOCIETE GENERALE
By: XXXXXXX XXXXXXXX
Address: Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000 0000
ABN AMRO BANK, N.V.
By: XXXXXX XXXXX XXXXX XXX
Address: Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: 000 000 0000
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CREDIT LYONNAIS, S.A.
By: XXXXXXXX XXXXXXX
Address: 000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000 0000
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THE EXHIBIT
[FORM OF CONFIDENTIALITY AGREEMENT]
The undersigned, _______________________________________ a prospective
[assignee/Transferee/participant/Overdraft Facility Transferee] to that
certain Revolving Credit Facility Agreement dated as of June 2, 1995 as
amended and restated pursuant to an amendment and restatement agreement dated
15th October, 1996 (such agreement, as so amended and restated and as it may
be amended, 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 Scotland Limited as borrower, BZW and NationsBanc
Capital Markets, Inc., as arrangers, 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 Borrower:
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 Borrower that the courts of
England shall have jurisdiction to hear and determine
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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.
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 the 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
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EXECUTED AND DELIVERED AS A DEED
BY [INSERT NAME IN BLOCK CAPITALS
OF PROSPECTIVE ASSIGNEE/
TRANSFEREE/PARTICIPANT/OVERDRAFT
FACILITY TRANSFEREE]
Name:
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Title:
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Name:
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Title:
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