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CONFORMED COPY
CHF 50,000,000
AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT
DATED 15TH OCTOBER, 1996
between
PELIKAN PRODUKTIONS AG
and
PELIKAN HARDCOPY (INTERNATIONAL) AG
as borrowers
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 NO.
1. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. The Facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . 9
5. Nature of Lenders' Obligations. . . . . . . . . . . . . . . . . . . . . 9
6. Utilisation of the Facility . . . . . . . . . . . . . . . . . . . . . . 9
7. Issue of Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . 12
8. Indemnity (Including Bank Indemnity for Short-Term Advances). . . . . . 12
9. Letter of Credit 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
23. Set-Off and Netting of Payments . . . . . . . . . . . . . . . . . . . . 24
24. Redistribution of Payments. . . . . . . . . . . . . . . . . . . . . . . 25
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 Borrowers. . . . . . . . . . . . . . . 30
30. Assignments and Transfers by Banks, Change of Overdraft Provider. . . . 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. Borrower Secession. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
39. Guarantee by Pelikan Produktions AG . . . . . . . . . . . . . . . . . . 36
40. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
41. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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SCHEDULES
1. The Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2. Form of Transfer Certificates . . . . . . . . . . . . . . . . . . . . . 41
3. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . 44
4. Utilisation Request . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5. Timetables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6. Form of Borrower Secession Memorandum . . . . . . . . . . . . . . . . . 47
7. Mandatory Liquid Asset Costs Rate Formula . . . . . . . . . . . . . . . 48
8. Form of Overdraft Provider Transfer Certificate . . . . . . . . . . . . 50
Signatories. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
EXHIBIT
Form of Confidentiality Agreement. . . . . . . . . . . . . . . . . . . . . . .57
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THIS AGREEMENT is made the 15th day of October, 1996 BETWEEN:
(1) PELIKAN PRODUKTIONS AG and PELIKAN HARDCOPY (INTERNATIONAL) AG (together
the "BORROWERS" and individually a "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 Swiss francs on 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
which comprise L/C Outstandings, such Bank's share shall be the amount that
it may become obliged to pay to the Fronting Bank pursuant to Clause 8.6)
and (ii) except for the purposes of Clause 25, its share of any Advance
which it is obliged, or may become obliged, to make pursuant to Clause 6.5
in respect of (a) any outstanding Short-Term Advance at close of business
on the day before the proposed Utilisation Date and (b) any Short-Term
Advance requested to be made no later than the specified time on such
proposed 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)
and/or Letters of Credit 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 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;
"BARCLAYS OVERDRAFT AGENT" means Barclays Bank (Schweiz) AG, a company
incorporated in Switzerland.
"BASLE PAPER" means the paper entitled International Convergence of Capital
Measurement and Capital Standards dated July 1988 prepared by the Basle
Committee on Banking Regulations and Supervisory Practices, as amended in
November 1991;
"BORROWER SECESSION MEMORANDUM" means a memorandum delivered to the Agent
by the Borrowers pursuant to Clause 38 in the form set out in the Sixth
Schedule;
"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;
"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, Barclays Bank PLC as documentation agent,
NationsBank of Texas, N.A. as administrative agent and collateral agent and
others;
"EVENT OF DEFAULT" means an "Event of Default" referred to in Section 5 of
the Nu-Kote Guarantees;
"EXPIRY DATE" means, in relation to any Letter of Credit, the date on which
the maximum aggregate liability thereunder is to be reduced to zero;
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"FACILITY" means the revolving cash advances and letter of credit facility
granted to the Borrowers in this Agreement;
"FACILITY OFFICE" means, in relation to any of the Agent, the Fronting Bank
or the banks, the office identified with its signature below or such other
office as it may from time to time select which is located in the same
jurisdiction as the office identified with its signature below (or, in the
case of a Transferee as the office identified in the Transfer Certificate
pursuant to which it became a party hereto) or, such other office as may be
agreed pursuant to Clause 17;
"FINANCE DOCUMENTS" means this Agreement, the Nu-Kote Guarantees, the
Collateral Documents, the Security Documents, the Hedging Documents and any
other document designated as such in writing by the Agent and the
Borrowers;
"GUARANTORS" means Nu-Kote Holding, Inc., Nu-Kote International, Inc.,
International Communication Materials, Inc., Future Graphics, Inc., Nu-Kote
Imaging International, Inc. and Nu-Kote Imperial, Ltd. and "GUARANTOR"
means any one of them;
"HEDGING DOCUMENTS" means any and all currency or interest rate swap and/or
interest cap and/or other hedging agreements entered into or to be entered
into by a Borrower with a Bank as have been heretofore (and/or as may
hereafter be) agreed in writing between a Borrower and the Agent to
constitute the Hedging Documents;
"INTELLECTUAL PROPERTY RIGHTS PLEDGE AGREEMENT" means the Intellectual
Property Rights Pledge Agreement dated 24th February, 1995 between Pelikan
Produktions AG and the Agent;
"INVENTORY PLEDGE AGREEMENT" means the Inventory Pledge Agreement dated
24th February, 1995 between Pelikan Produktions AG and the Agent;
"L/C OUTSTANDINGS" means, at any time, the amount that is the sum of (i)
the maximum aggregate amount that is or at any time thereafter may become
available for drawings under each Letter of Credit outstanding at such time
and (ii) the aggregate amount of all drawings under each Letter of Credit
honoured by the Fronting Bank and not theretofore reimbursed by the
Borrowers hereunder;
"LENDERS" means the Banks and the Overdraft Provider;
"LETTER OF CREDIT" means a documentary or standby letter of credit issued
or to be issued by the Fronting Bank pursuant to Clause 7 in each case, in
such form as may be requested by a Borrower and which is acceptable to the
Fronting Bank;
"LIBOR" means, in relation to any Advance (other than a Short-Term Advance)
or unpaid sum, the rate per annum determined by the Agent to be equal to
the arithmetic mean (rounded upwards, if necessary, to four decimal places)
of the rates (as notified to the Agent) at which each of the Reference
Banks was offering to prime banks in the London Interbank Market deposits
in the currency of the relevant Advance and for the specified period at or
about 11.00 a.m. on the Quotation Date for such specified period and, for
the purposes of this definition, "SPECIFIED PERIOD" means the Term of such
Advance or, as the case may be, the relevant period in respect of which
LIBOR fails to be determined in relation to such unpaid sum;
"MANDATORY LIQUID ASSET COSTS RATE" means in relation to any Advance or
unpaid sum
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denominated in sterling, the rate determined in accordance with
the Seventh Schedule;
"MORTGAGE TRANSFER AGREEMENT" means the Mortgage Transfer Agreement dated
24th February, 1995 between Pelikan Produktions AG and the Agent;
"NU-KOTE GUARANTEES" means the guarantees dated 24th February, 1995 given
by the Guarantors in favour of the Agent for itself and on behalf of the
Lenders;
"OBLIGORS" means the Borrowers and the Guarantors and "OBLIGOR" means any
one of them;
"OPTIONAL CURRENCY" means dollars, deutschmarks and sterling;
"ORIGINAL SWISS FRANC AMOUNT" means:
(i) the principal amount (in the case of an Advance), or the face value
(in the case of a Letter of Credit), of a Utilisation denominated in
Swiss francs; or
(ii) the principal amount (in the case of an Advance), or the face value
(in the case of a Letter of Credit), of a Utilisation denominated in
an Optional Currency, translated into Swiss francs on the basis of
the Agent's Spot Rate of Exchange on the date of receipt by the Agent
of the Utilisation Request for that Utilisation;
"OUTSTANDINGS" means, at any time, the aggregate of:
(i) the principal amount of each outstanding Advance at such time; and
(ii) the L/C Outstandings at such time;
"OVERDRAFT FACILITY TRANSFEREE" means a Lender to which the Overdraft
Provider transfers all (but not part) of its rights and obligations
hereunder as the Overdraft Provider in accordance with Clause 30.5;
"OVERDRAFT PROVIDER" means:
(i) Barclays Bank PLC in its capacity as overdraft provider hereunder
(and not, for the avoidance of doubt, Barclays Overdraft Agent
through which Barclays Bank PLC acts in connection with Short-Term
Advances) until the date, if any, that is 30 days after the date
Barclays Bank PLC notifies the Borrowers that no more Short-Term
Advances will be made by it; or
(ii) any other Lender that may, from time to time, be appointed to act as
the overdraft provider hereunder in accordance with Clause 30.5;
"OVERDRAFT PROVIDER TRANSFER CERTIFICATE" means a certificate substantially
in the form set out in the Eighth Schedule signed by the Overdraft Provider
and the Overdraft Facility Transferee whereby:
(i) the Overdraft Provider seeks to procure the transfer to the Overdraft
Facility Transferee of all (but not part) of the Overdraft Provider's
rights and obligations hereunder upon and subject to the conditions
set out in Clause 30.5; and
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(ii) the Overdraft Facility Transferee undertakes to perform all (but not
part) of the Overdraft Provider's obligations hereunder as a result
of delivery of such certificate to the Borrowers and the Agent as is
contemplated in Clause 30.5;
"OVERDRAFT RATE" means on any day the rate per annum notified by Barclays
Overdraft Agent (or if any other Lender is the Overdraft Provider, such
Overdraft Provider) to the Agent and the relevant Borrower as being the
rate per annum for or with effect from such day (including a margin of 2%
per annum);
"OVERDRAFT REPAYMENT DATE" means, in relation to any Short-Term Advance,
the earlier of (1) the date falling five business days after demand for
repayment made to the relevant Borrower by the Overdraft Provider and (2)
the Termination Date;
"PELIKAN HARDCOPY INTERNATIONAL AG ASSIGNMENT AGREEMENT" means the
Assignment Agreement dated 24th February, 1995 between Pelikan Hardcopy
(International) AG and the Agent;
"PELIKAN PRODUKTIONS AG ASSIGNMENT AGREEMENT" means the Assignment
Agreement dated 24th February, 1995 between Pelikan Produktions AG and the
Agent;
"POTENTIAL EVENT OF DEFAULT" has the meaning given to it in the Nu-Kote
Guarantees;
"PROPORTION" means, in relation to a Bank, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are then
zero, by its Commitment to the Total Commitments immediately prior to their
reduction to zero);
"QUALIFYING LENDER" means a person recognized as a bank pursuant to Clause
232 of the Circular of the Swiss Federal Tax Authorities, dated 29 October
1992, regarding the tax treatment of syndicated loans, debt certificate
issues, promissory notes and subparticipations, Provided that if that
circular is amended or repealed, the Agent shall have power to amend this
definition in a manner consistent with such amendment or repeal as soon as
practically possible;
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder (other than a Short-Term Advance), the
day on which quotations would ordinarily be given by prime banks in the
London Interbank Market for deposits in the currency in relation to which
such rate is to be determined for delivery on the first day of that period
Provided that, if for any such period quotations would ordinarily be given
on more than one date, the Quotation Date for that period shall be the last
of those dates;
"REFERENCE BANKS" means the principal London office of Barclays Bank PLC or
the principal London offices of other bank or banks as may from time to
time be agreed between the Borrowers and the Agent acting on the
instructions of the Requisite Lenders;
"REPAYMENT DATE" means, in relation to any Advance hereunder (other than a
Short-Term Advance), the last day of the Term thereof;
"REQUISITE LENDERS" has the meaning given to it in the Credit Agreement;
"REQUESTED AMOUNT" means, in relation to any Utilisation Request, the
aggregate principal amount of the Advances or, as the case may be, face
amount of the Letter of Credit therein requested;
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"SECURITY DOCUMENTS" means the Pelikan Produktions AG Assignment Agreement,
the Pelikan Hardcopy International AG Assignment Agreement, the
Intellectual Property Rights Pledge Agreement, the Inventory Pledge
Agreement, the Mortgage Transfer Agreement and the Share Pledge Agreement;
"SHARE PLEDGE AGREEMENT" means the Share Pledge Agreement dated 24th
February, 1995 between Pelikan Produktions AG and the Agent;
"SHORT-TERM ADVANCE" means any Advance denominated in Swiss francs made by
the Overdraft Provider in that capacity pursuant to the terms hereof;
"TERM" means, save as otherwise provided herein, in relation to any Advance
hereunder (other than a Short-Term Advance), the period for which such
Advance is borrowed (as specified in the Utilisation Request relating
thereto) and, in relation to any Letter of Credit, the period from the date
on which such Letter of Credit is issued until its Expiry Date (as
specified in the 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 Borrowers and the
Agent as is contemplated in Clause 30;
"TRANSFER DATE" means, in relation to any Transfer Certificate or Overdraft
Provider Transfer Certificate, the date for the making of the transfer as
specified in the schedule to such Transfer Certificate or Overdraft
Provider Transfer Certificate (as the case may be);
"TRANSFEREE" means a bank or other financial institution to which a Bank
transfers all or part of such Bank's rights and obligations hereunder in
accordance with Clause 30;
"UK FACILITY" means the amended and restated revolving credit, letter of
credit and contract guarantee facility made available to Pelikan Scotland
Limited by Barclays Bank PLC and NationsBank, N.A. of even date hereof;
"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 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
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form set out in the Fourth Schedule.
1.2 Any reference in this Agreement to:
an "AFFILIATE" of the Agent shall be construed as a reference to a
subsidiary or holding company, or to a subsidiary of a holding company, of
the Agent;
the "AGENT", the "COLLATERAL AGENT" or any "LENDER" or any "OVERDRAFT
PROVIDER" shall be construed so as to include its and any subsequent
successors, Transferees, Overdraft Facility Transferees and permitted
assigns in accordance with their respective interests;
a "BUSINESS DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks generally are open for business in
London and Zurich and (but only in relation to a transaction involving an
Optional Currency) the principal financial centre of the country of that
Optional Currency;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would otherwise
end on a day which is not a business day, it shall end on the next
succeeding business day, unless that day falls in the calendar month
succeeding that in which it would otherwise have ended, in which case it
shall end on the immediately preceding business day Provided that, if a
period starts on the last business day in a calendar month or if there is
no numerically corresponding day in the month in which that period ends,
that period shall end on the last business day in that later month (and
references to "MONTHS" shall be construed accordingly);
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same); and
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time.
1.3 "CHF" and "SWISS FRANCS" denote the lawful currency of Switzerland, "US$"
and "DOLLARS" denote the lawful currency of the United States of America,
"DM" and "DEUTSCHMARKS" denote the lawful currency of the Federal Republic
of Germany and "L" and "STERLING" denote the lawful currency of the United
Kingdom.
1.4 Save where the contrary is indicated, any reference in this Agreement to:
(i) this Agreement or any other agreement or document shall be construed
as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may 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.
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2. THE FACILITY
2.1 The Lenders grant to the Borrowers, upon the terms and subject to the
conditions hereof, a revolving cash advance and letter of credit facility
in an aggregate Original Swiss Franc Amount of CHF 50,000,000.
2.2 Subject to Clause 2.1 above, the aggregate amount of all Utilisations
denominated in an Optional Currency outstanding at any time shall not:
(i) in the case of Utilisations denominated in dollars, exceed
US$20,000,000;
(ii) in the case of Utilisations denominated in deutschmarks, exceed
DM30,000,000; and
(iii) in the case of Utilisations denominated in sterling, exceed
L15,000,000.
2.3 Notwithstanding Clause 2.2 above, that part of the Facility comprising
Letters of Credit is limited to an Original Swiss Franc Amount of CHF
12,000,000.
2.4 That part of the Facility comprising Short-Term Advances will be provided
by the Overdraft Provider and is limited to CHF 6,250,000.
3. PURPOSE
3.1 The Facility is intended to be used for general corporate purposes
including, but not limited to:
(i) working capital;
(ii) capital and other expenditures and expenses including, without
limitation, Permitted Acquisitions (as defined in the Credit
Agreement); and
(iii) refinancing existing indebtedness and other indebtedness,
including reimbursement to the Fronting Bank of any amounts drawn
under any Letters of Credit,
and, accordingly, each Borrower shall apply all amounts raised by it
hereunder in or towards satisfaction of such purposes.
3.2 Without prejudice to the obligations of the Borrowers under Clause 3.1, the
Agents and the Lenders shall not be obliged to concern themselves with the
application of amounts raised by a Borrower hereunder.
3.3 During the period while Barclays Bank PLC is the Overdraft Provider,
Barclays Bank PLC shall cause Barclays Overdraft Agent to act as its agent
in relation to Short-Term Advances made to the Borrower by Barclays Bank
PLC as Overdraft Provider
4. CONDITIONS PRECEDENT
(a) Neither Borrower may utilise the Facility unless the Agent has confirmed to
the Borrowers and the Lenders that it has received all of the documents
listed in the Third Schedule and that each is, in form and substance,
satisfactory to the Agent.
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(b) By signing this Agreement, each of Pelikan Produktions AG and Pelikan
Hardcopy (International) AG, in their capacities as pledgors and assignors
under the Security Documents, acknowledge and agree that their obligations
under the Security Documents remain fully applicable and extend to cover
all of the obligations owed by each of them in their capacities as
borrowers (and, in the case of Pelikan Produktions AG, under Clause 39 as a
guarantor) under this Agreement.
5. NATURE OF LENDERS' OBLIGATIONS
5.1 The obligations of each Lender hereunder are several.
5.2 The failure by a Lender to perform its obligations hereunder shall not
affect the obligations of any other Lender or a Borrower towards any other
party hereto nor shall any other party be liable for the failure by such
Lender to perform its obligations hereunder.
6. 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 will be issued by the Fronting Bank
or, as the case may be, Short-Term Advances will be made by the Overdraft
Provider to a Borrower if:
(i) no later than the specified time in respect of the proposed
Utilisation, the Agent or, in the case of a Short-Term Advance, the
Overdraft Provider, has received from the relevant 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
less than an Original Swiss Amount of CHF 2,000,000 is
outstanding at such time is:
(A) if the currency is Swiss Francs, a minimum amount of
CHF 1,000,000 and in additional integral multiples of
CHF 2,000,000; or
(B) if the currency is an Optional Currency, a minimum
Original Swiss Franc Amount of CHF 1,000,000 (or an
approximate amount thereof) and in additional integral
multiples of an Original Swiss Franc Amount of CHF
2,000,000 (or as approximate amount thereof); or
(2) if an Advance (other than a Short-Term Advance) of less than
CHF 2,000,000 is outstanding at such time is:
(A) if the currency is Swiss francs, a minimum amount of
CHF 2,500,000 and in additional integral multiples of
CHF 1,000,000;
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or
(B) if the currency is an Optional Currency, a minimum
Original Swiss Franc Amount of CHF 2,500,000 (or an
approximate amount thereof) and in additional integral
multiples of an Original Swiss France Amount of CHF
1,000,000 (or an approximate amount thereof); or
(b) in the case of a 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 Swiss Franc
Amount of CHF 12,000,000; or
(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 CHF 6,250,000;
(iv) in the case of a Utilisation to be denominated in an Optional
Currency, its principal amount (in the case of an Advance) or face
value (in the case of a Letter of Credit), when aggregated with the
aggregate principal amounts and/or face values, as the case may be,
of all outstanding Utilisations denominated in the same Optional
Currency, would not exceed the limits set out in Clause 2.2; and
(v) the Term requested by the relevant Borrower in such Utilisation
Request for any Advance (other than Short-Term Advances) will end
on a business day which is or precedes the Termination Date and
will be:
(a) in respect of any such Advance with a proposed 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 any such Advance to which Clause 6.1(v)(a) does
not apply, a period of one, three or six months;
(c) in respect of a Letter of Credit:
(1) if denominated in Swiss Francs, any period of 18 months or
less; or
(2) if denominated in an Optional Currency, any period of
twelve months or less;
(d) in respect of a Short-Term Advance, any period of one month or
less; and
(vi) the making of such Advance (other than a Short-Term Advance) will
not result in there being more than 5 outstanding Advances (other
than Short-Term Advances); and
(vii) in the case of a Utilisation by means of a Short-Term Advance,
there is an Overdraft Provider.
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6.2 If and whenever, on the occasion of a Utilisation, the Banks are required
to make Advances or the Fronting Bank is required to issue a Letter of
Credit pursuant hereto, the aggregate principal amount of the Advances to
be so made or, as the case may be, the face amount of the Letter of Credit
to be so issued shall be allocated to, and apportioned among, the Banks
rateably to their respective Available Commitments for such 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, as
the case may be, the Term of the proposed Letter of Credit.
6.3 Each Bank shall, subject to the terms hereof be obliged, through its
Facility Office, to make an Advance on the proposed Utilisation Date in a
principal amount equal to the amount allocated to it pursuant to this
Clause 6.
6.4 The Agent shall not later than the specified time notify each Bank by
telephone of the principal amount or, as the case may be, the amount
allocated to it pursuant to this Clause 6, such notice to be promptly
confirmed by the Agent by telex or telefax.
6.5 The Overdraft Provider may at any time request by notice to a Borrower
(through the Agent) which at such time has an outstanding Short-Term
Advance made by such Overdraft Provider that the Banks make an Advance to
such Borrower on a business day specified by the Overdraft Provider in such
notice (such date falling no earlier than five business days after receipt
of such notice) and upon receiving such notice such Borrower shall, unless
such outstanding Short-Term Advance has been repaid within three business
days of receipt of such notice, be deemed to have served a 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.l(iii) or (v) or the
conditions to making an Advance contained in Clause 10 or any cancellation
of the Available Facility following the making of such Short-Term Advance,
the Banks shall make such Advance available to such Borrower rateably to
their respective Available Commitments at such time (or immediately prior
to any such cancellation) and interest on such Advance shall be determined
in accordance with Clause 11.2 and the Agent is hereby authorised to pay
the proceeds of such Advance to the Overdraft Provider on behalf of the
relevant Borrower to be applied in discharge of such outstanding Short-Term
Advance.
6.6 For the avoidance of any doubt, since the definition of Commitment only
applies to Banks and not the Overdraft Provider or the Fronting Bank, any
Bank that is also an Overdraft Provider or Fronting Bank may be obliged to
have Outstandings that, including its Advances as a Bank, its Short-Term
Advances as Overdraft Provider and its L/C Outstandings as Fronting Bank,
exceed the amount of its Commitment and any such Bank, in its capacity as
Overdraft Provider and Fronting Bank, has the benefit of the Banks'
obligations under Clauses 6.5 and 8.6 in respect of its Short-Term Advances
and L/C Outstandings as Fronting Bank.
7. ISSUE OF LETTERS OF CREDIT
7.1 Each Utilisation Request in respect of a Letter of Credit shall, in
addition to the information required pursuant to Clause 6.1, specify the
name and address of the recipient to which the relevant Letter of Credit
should be delivered and shall have the proposed form of the Letter of
Credit attached to it.
7.2 Subject to the provisions hereof, the Fronting Bank shall issue a Letter of
Credit in accordance with Clause 7.1 if:
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(i) no Event of Default or Potential Event of Default has occurred which
is continuing;
(ii) the representations and warranties set out in Section 3 of the
Nu-Kote Guarantees are true in all material respects on and as of
such 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; and
(iii) the form of the Letter of Credit has been agreed between the
relevant Borrower and the Fronting Bank by no later than the
specified time.
8. INDEMNITY (INCLUDING BANK INDEMNITY FOR SHORT-TERM ADVANCES)
8.1 If, at any time, a demand for payment (the amount so demanded being herein
referred to as the "AMOUNT DEMANDED") is made under a Letter of Credit by
the beneficiary thereof, the Agent shall notify the relevant Borrower of
such demand and make demand of that Borrower for an amount equal to the
Amount Demanded.
8.2 A Borrower shall pay to the Agent an amount equal to the Amount Demanded
following receipt by it of a demand made on it by the Agent under this
Clause 8. Such payment shall be made on the second business day following
the business day on which such Borrower receives such demand from the
Agent, or, in the event that the Borrower receives such demand after 9.00
a.m. on such business day, on the third business day following.
8.3 Each Borrower hereby irrevocably and unconditionally agrees to indemnify
and keep indemnified the Fronting Bank against each and every sum paid or
payable by the Fronting Bank under any Letter of Credit issued at its
request and also undertakes to indemnify and hold harmless the Fronting
Bank on demand from and against all actions, proceedings, liabilities,
costs (including, without limitation, any costs incurred in finding any
amount which falls due from the Fronting Bank under any Letter of Credit in
connection with any such Letter of Credit as certified by the Fronting Bank
to the relevant Borrower), claims, losses, damages and expenses which the
Fronting Bank may at any time incur or sustain in connection with or
arising out of any Letter of Credit issued at its request Provided that a
Borrower shall not be obliged to pay any amount under this Clause 8.3 to
the extent that such obligation has arisen as a result of (i) the fraud,
gross negligence or wilful misconduct of the Fronting Bank or (ii) the
failure by the Fronting Bank to use reasonable care to determine that the
documents and certificates required to be delivered under any Letter of
Credit have been delivered and that they comply on their face with the
requirements of that Letter of Credit before making any payment thereunder.
8.4 The Fronting Bank shall be entitled to make any payment under any Letter of
Credit for which a demand has been made without any reference to or further
authority from the Borrower at whose request such Letter of Credit was
issued or any other investigation or enquiry, need not concern itself with
the propriety of any demand made or purported to be made under and in the
manner required by the terms of any such Letter of Credit and shall be
entitled to assume that any person expressed in any Letter of Credit or in
any notice served pursuant to any such Letter of Credit to be entitled to
make demands is so entitled and that any individual purporting to sign any
such demand or notice on behalf of such person is duly 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
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a defence to any demand made of a Borrower, nor shall a 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 the documents and
certificates required to be delivered under any Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Letter of Credit before making any payment thereunder.
8.5 Save as otherwise provided in this Clause 8, the obligations of each
Borrower to the Fronting Bank in connection with any such Letter of Credit
shall not be discharged, lessened or impaired by any act, omission or
circumstance whatsoever which, but for this provision, might operate to
release or exonerate such Borrower from all or part of such obligations or
in any other way discharge, lessen or impair the same.
8.6 Each Bank hereby irrevocably and unconditionally agrees to indemnify and
keep indemnified the Fronting Bank and the Overdraft Provider on demand and
in its Proportion against each and every sum payable hereunder by either
Borrower to the Fronting Bank and the Overdraft Provider in respect of a
Letter of Credit or Short-Term Advance but which is not paid on the due
date therefor.
9. LETTER OF CREDIT COMMISSIONS AND FEES
Each Borrower agrees to pay the following amounts with respect to each
Letter of Credit issued by the Fronting Bank hereunder at its request:
(i) (a) in respect of each documentary Letter of Credit with a term (on
issue thereof) of less than one year, a commission of 0.625% per
annum on the weighted average maximum amount available from time
to time to be drawn under such Letter of Credit. Such commission
shall be paid to the Agent for the account of each Bank and for
distribution by the Agent to each Bank in proportion to each
Bank's allocation pursuant to Clause 6.2 in arrear on and to
(but excluding) each 31st March, 30th June, 30th September and
31st December in each year during the term thereof and on the
Expiry Date thereof, the first such payment to be made on 31st
March, 1995 in respect of any documentary Letter of Credit
issued prior to such date;
(b) in respect of each documentary Letter of Credit with a term (on
issue thereof) of one year or more and each standby Letter of
Credit, a commission equal to the product of (A) the weighted
average Applicable Margin applicable to the Advances (other
than Short-Term Advances) outstanding hereunder during the
period of calculation multiplied by (B) the weighted average
maximum amount available from time to time to be drawn during
such period under such Letter of Credit. Such commission shall
be paid to the Agent for the account of each Bank and for
distribution by the Agent to each Bank in proportion to each
Bank's allocation pursuant to Clause 6.2 in arrear on and to
(but excluding) each 31st March, 30th June, 30th September and
31st December in each year during the term thereof and on the
Expiry Date thereof, the first such payment to be made on 31st
March, 1995;
(ii) a fronting fee, for the account of the Fronting Bank, of 0.20% per
annum on the face amount of such Letter of Credit in arrear on and to
(but excluding) each 31st March, 30th June, 30th September and 31st
December in each year during the term thereof and on the Expiry Date
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thereof, the first such payment to be made on 31st March 1995 in
respect of any such Letter of Credit issued prior to such date; and
(iii) with respect to the issuance, any amendment and any transfer
thereof and each drawing thereunder, in each case reasonable
documentary and processing charges in accordance with the Fronting
Bank's standard schedule for such charges in effect at the date of
issue or the relevant amendment, transfer or drawing (as the case may
be) of the relevant Letter of Credit.
10. MAKING OF ADVANCES
10.1 If any Bank or the Overdraft Provider has been requested to make any
Advance in accordance with the provisions hereof, and if on the proposed
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 in the case of such Bank and if Barclays Bank
PLC is the Overdraft Provider, through Barclays Overdraft Agent in the case
of Short-Term Advances) to the relevant Borrower in accordance with the
provisions of Clause 22. Advances made hereunder shall not be represented
by notes or other instruments evidencing indebtedness.
10.2 If, before 9.00 a.m. on the Utilisation Date of an Advance to be
denominiated in an Optional Currency, the Agent receives notice from a
Lender that:
(i) it is impracticable for the affected Lender to fund its participation
in such Advance for its Term in that Optional Currency in the ordinary
course of business in the London interbank market; or
(ii) the use of the proposed Optional Currency might contravene any law or
regulation relevant to the affected Lender;
then the Agent shall promptly notify the relevant Borrower and that Advance
shall not be made.
10.3 The Agent shall notify each relevant Party of any applicable Agent's Spot
Rate of Exchange or Original Swiss Franc Amount as soon as practicable
after it is ascertained.
11. INTEREST
11.1 On the Repayment Date relating to each Advance (other than a Short-Term
Advance) made to it the relevant Borrower shall pay accrued interest on
that Advance.
11.2 On the earlier of:
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(i) the last business day of each calendar quarter; and
(ii) the Overdraft Repayment Date, the relevant Borrower shall pay accrued
interest on any Short Term Advance made to it.
11.3 The rate of interest applicable to an Advance (other than a Short-Term
Advance) made by a Bank during the Term of such Advance shall be the rate
per annum determined by the Agent to be the sum of:
(i) LIBOR on the Quotation Date for such Advance;
(ii) the Applicable Margin;and
(iii) (in the case of an Advance denominated in sterling) the Mandatory
Liquid Asset Costs Rate in respect thereof.
11.4 The rate of interest applicable to a Short-Term Advance shall be the
Overdraft Rate.
11.5 The Agent shall promptly notify the Borrowers and the relevant Banks of
each determination of an interest rate made by it pursuant to this Clause
11.
12. REPAYMENT OF ADVANCES
12.1 Each Borrower shall repay each Advance (other than a Short-Term Advance)
made to it in full on the Repayment Date relating thereto.
12.2 Each Borrower shall repay each Short-Term Advance made to it in full on or
before the Overdraft Repayment Date.
12.3 Neither Borrower shall repay all or any part of any Advance outstanding
hereunder except at the times and in the manner expressly provided herein.
13. CANCELLATION
13.1 The Borrowers may, by giving to the Agent not less than three business
days' prior notice to that effect, cancel the whole or any part (being a
minimum amount of CHF 2,500,000 and in additional integral multiples of CHF
1,000,000) of the Available Facility. Any such cancellation shall reduce
the Commitment of each Bank rateably.
13.2 Any notice of cancellation given by the Borrowers pursuant to Clause 13.1
shall be irrevocable and shall specify the date upon which such
cancellation is to be made and the amount of such cancellation.
13.3 If (i) a Borrower is required to make any additional payment to a Lender
pursuant to Clauses 14 or 18.2 or (ii) any Lender claims indemnification
under Clauses 15.1 or 15.2, the Borrowers may, within thirty days
thereafter and by not less than fifteen days' prior notice to the Agent
(which notice shall be irrevocable), cancel all or any part of such
Lender's Commitment whereupon on the date specified in such notice its
Commitment shall be reduced by the amount so cancelled.
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13.4 If the Borrowers give notice of cancellation pursuant to Clause 13.3, they
may at the same time as such notice expires repay each outstanding Advance
(or, as the case may be, the relevant proportion thereof) of the relevant
Lender together with accrued interest thereon and may procure that such
Lender's liability under all outstanding Letters of Credit (or, as the case
may be, the relevant proportion thereof) will be secured in a manner
acceptable to such Lender, it being understood that in no event shall any
Letter of Credit or the obligations of the Fronting Bank thereunder be
cancelled and security equal to, and in the same currency as, the maximum
amount that can be drawn under each outstanding Letter of Credit issued by
the Fronting Bank shall be acceptable to the Fronting Bank.
13.5 If Nu-Kote International Inc. gives notice in accordance with the Credit
Agreement to cancel the whole or any part of a Bank's commitment under the
Credit Agreement, the Borrowers shall, at the same time give notice in
accordance with Clause 13.1 to cancel the whole or a proportion equal to
the proportion to be cancelled under the Credit Agreement, of such Bank's
Commitment hereunder. If the Borrowers fail to give such a notice in
accordance with Clause 13.1, the notice given in accordance with the Credit
Agreement shall be deemed to be a notice under Clause 13.1, MUTATIS
MUTANDIS.
14. TAXES
14.1 All payments to be made by a Borrower to the Agent, any Lender or the
Fronting Bank hereunder shall be made free and clear of and without
deduction for or on account of tax unless such Borrower is required to make
such a payment subject to the deduction or withholding of tax, in which
case the relevant Borrower shall promptly upon becoming aware thereof
notify the Agent thereof and the relevant Borrower shall pay to the
relevant taxing or other governmental authority the full amount required to
be deducted or withheld (including the full amount required to be deducted
or withheld from any additional amount paid by such Borrower pursuant to
the succeeding sentence) promptly upon becoming aware of the same. If such
deduction or withholding is required, the sum payable by the relevant
Borrower in respect of which such deduction or withholding is required to
be made shall be increased to the extent necessary to ensure that, after
the making of the required deduction or withholding, the Agent, such Lender
or, as the case may be, the Fronting Bank receives and retains (free from
any liability in respect of any such deduction or withholding) a net sum
equal to the sum which it would have received and so retained had no such
deduction or withholding been made or required to be made Provided that the
relevant Borrower shall not be required to make any additional payment to
any Lender pursuant to this Clause 14.1 if:-
(i) the law, regulation or other administrative circular requiring such
deduction or withholding was in existence on 24th February, 1995;
(ii) the requirement to deduct or withhold arises as a result of such
Lender not being 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
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a Borrower pursuant to Clause 14.1 hereof, it shall promptly notify the
relevant Borrower of the availability of such refund and shall, within 30
days after receipt of a request by the relevant Borrower, apply for such
refund or shall furnish to the relevant Borrower such forms, duly
completed, as will enable that Borrower to claim such refund on its own
behalf. The relevant Borrower shall reimburse such Lender for all costs
reasonably incurred by it in applying for seeking such refund. If any
Lender determines that it has received a refund in respect of any taxes
paid by a Borrower pursuant to Clause 14.1 hereof, it shall repay such
refund within 30 days after receipt to the relevant Borrower to the extent
of amounts not in excess of the amounts actually paid by such Borrower and
not previously reimbursed in respect of the taxes giving rise to such
refund net of all out-of-pocket expenses reasonably incurred by such
Lender not previously reimbursed and without interest (other than interest
received from the relevant taxing authority with respect to such refund).
The relevant Borrower, upon request of the relevant Lender, agrees to
return to such Lender the amount paid to it by the applicable Lender
with respect to such refund (plus applicable penalties, interest or other
charges) in the event that such Lender is required to repay such refund. In
addition the Agent and each Lender shall reasonably cooperate with a
Borrower, at that Borrower's expense in contesting any taxes that such
Borrower is required to bear pursuant to Clause 14.1 hereof and shall pay
to such Borrower, on a net after tax basis, any refunds obtained as a
result of such contest, together with any interest thereon, within 30 days
of receipt. Nothing in this Clause 14.2 shall interfere with the right of
any person to arrange its tax affairs in whatever manner it thinks fit nor
oblige any person to disclose any information relating to its tax affairs
or any computations in respect thereof to any other person.
15. INCREASED COSTS
15.1 If, after 24th February, 1995 by reason of, (i) the introduction of or any
change (including, without limitation, any change by way of imposition or
increase of tax or reserve requirements) in or in the official
interpretation of any law or regulation by the authority charged with the
administration or interpretation thereof, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
or quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law) but being a
guideline or request with which banks are generally accustomed to comply:
(i) a Lender incurs a cost as a result of such Lender's having entered
into and/or performing its obligations under this Agreement and/or
assuming or maintaining a commitment under this Agreement and/or
participating in one or more Advances and/or one or more Letters of
Credit hereunder;
(ii) there is an increase in the cost to a Lender of funding or
maintaining its participation in (a) all or any of the advances
comprised in a class of advances formed by or including the
Advances made or to be made hereunder and/or (b) all or any of
the letters of credit comprised in a class of letters of credit
formed by or including the Letters of Credit made or to be made
hereunder; or
(iii) a Lender becomes liable to make any payment on account of tax or
otherwise (not being a tax imposed on or measured by the net income
or capital of such Lender's Facility Office by the jurisdiction in
which it is incorporated or in which it or its Facility Office is
located or centrally managed or controlled) on or calculated by
reference to the amount of such Lender's participation in the
Advances made or to be made hereunder and/or any Letter of Credit
issued or to be issued hereunder and/or to any sum received or
receivable by it hereunder,
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then the relevant Lender shall, through the Agent, notify Pelikan
Produktions AG of such cost, such increased cost or, as the case may be,
such liability within 30 days of becoming aware of the same, demanding
indemnification in respect thereof and upon receipt of such notice and
demand, Pelikan Produktions AG shall pay to the Agent for the account of
that Lender, within five business days after receipt of such notice and
demand, additional amounts sufficient to indemnify that Lender against
such cost, such increased cost or such liability. A certificate in
reasonable detail as to the amount of such cost, increased cost or such
liability submitted to the Borrowers and the Agent by that Lender, shall,
except for manifest error, be final, conclusive and binding for all
purposes.
15.2 In the event that any Lender shall have reasonably determined that the
adoption or implementation after 24th February, 1995 of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy (other than (i) the terms, proposals and
recommendations contained in the Basle Paper or (ii) any other rule,
regulation, guideline or order regarding capital adequacy in effect on
24th February, 1995 affecting such Lender), including, without
limitation, a request or requirement (but being a request or requirement
with which banks are generally accustomed to comply) which affects the
manner in which a Lender is required to or does maintain capital
resources having regard to such Lender's obligations hereunder and to
amounts owing to it hereunder or any change therein or in the
interpretation or application thereof or compliance by any Lender with
any request or directive regarding capital adequacy (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful but if not having the force of law, being a request
or directive with which banks are generally accustomed to comply and
in any event excluding the terms, proposals and recommendations
contained in the Basle Paper or any other rule, regulation, guideline or
order regarding capital adequacy in effect on 24th February, 1995
affecting such Lender) from any central bank or governmental agency
or body having jurisdiction, has the effect of increasing the amount
of capital required to be maintained by such Lender and thereby reducing
the rate of return on such Lender's overall capital as a consequence of
such Lender's obligations hereunder to a level below that which such
Lender would have achieved but for the occurrence of such circumstances,
then the relevant Lender shall, through the Agent, notify Pelikan
Produktions AG of such event within 30 days of becoming aware of the
same demanding indemnification in respect thereof and including in such
notification and demand a certificate stating (a) that one of the events
described in this Clause 15.2 has occurred and describing in reasonable
detail the nature of such event, (b) the amount of the reduction in the
rate of return on such Lender's capital reasonably determined by such
Lender to be allocable to the existence of such Lender's obligations
hereunder and (c) setting forth in reasonable detail the manner of
calculation of the reduction in the rate of return on such Lender's
capital and such allocated amount thereof and Pelikan Produktions AG shall
upon receipt of such notice and demand pay to the Agent, for the account
of such Lender, additional amounts sufficient to compensate such Lender
for such reduction. A certificate as to the amount of such compensation,
submitted to the Borrowers and the Agent by such Lender shall, in the
absence of manifest error, be final, conclusive and binding for all
purposes. In determining such amount, a Lender may use any reasonable
averaging and attribution method. Nothing in this Clause 15.2 is intended
to provide to the Borrowers the right to inspect the records, files or
books of any Lender.
15. Pelikan Produktions AG shall not be required to pay any amounts pursuant
to Clauses 15.1 or 15.2:
(i) to the extent that such amounts are recovered under Clause 14,
Clause 18 or any other sub-clause of Clause 15;
(ii) to the extent that such cost, increased cost or liability would not
have arisen but for a
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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 the 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 then that Lender shall, promptly after
becoming aware of the same, deliver to Pelikan Produktions AG through the
Agent a certificate to that effect and, unless such illegality is avoided
in accordance with Clause 17 or Clause 38 taking into account any grace
period allowed by any such order, request or requirement:
(i) such Lender shall not thereafter be obliged to make any Advances and
the amount of its Commitment shall be immediately reduced to zero;
and
(ii) if the Agent on behalf of such Lender so requires, Pelikan
Produktions AG shall on such date as the Agent shall have specified:
(a) repay each outstanding Advance together with accrued interest
thereon and all other amounts owing to such Lender; and/or
(b) procure that such Lender's obligations under any Letters of
Credit will be secured in a manner acceptable to such Lender,
it being understood that in no event shall any Letter of
Credit or the obligations of the Fronting Bank thereunder be
cancelled and security in Swiss francs equal to the maximum
amount that can be drawn under each Letter of Credit
outstanding at such time shall be acceptable to the Fronting
Bank.
17. MITIGATION
17.1 If, in respect of any Lender, circumstances arise which would or would
upon the giving of notice result in:
(i) the reduction of its Commitment to zero pursuant to Clause 16(i);
(ii) an increase in the amount of any payment to be made to it or for its
account pursuant to Clause 14 or Clause 18.2; or
(iii) a claim for indemnification pursuant to Clause 15.1 or 15.2,
then, without in any way limiting, reducing or otherwise qualifying
the rights of such Lender or the obligations of the Borrowers under
any of the Clauses referred to in (i), (ii) or (iii) above such
Lender shall promptly upon becoming aware of the same notify the
Agent thereof and, in consultation with the Agent and the Borrowers
to the extent that it can do so without prejudice to its own
position, take such steps as it determines are available to it
(acting reasonably) to mitigate the effects of such
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circumstances at the request and expense of Pelikan Produktions AG
including (i) the transfer of its Facility Office; (ii) (subject to
Clause 30) the transfer of its rights and obligations hereunder to
another financial institution acceptable to the Borrowers and
willing to participate in the Facility; and/or (iii) within 30 days
of becoming aware of the same, the execution and delivery to the
relevant authorities (and/or the Borrowers) of any documentation
necessary to secure the benefit of any applicable double taxation
treaty or any relevant domestic law which would operate to mitigate
any of the circumstances referred to above Provided that such
Lender shall be under no obligation to take any such action if, in
the reasonable opinion of such Lender, to do so might have any
adverse effect upon its business, operations or financial condition.
17.2 The Borrowers hereby agree to pay all expenses reasonably incurred by any
Lender in taking steps to mitigate the effects of circumstances giving
rise to any of the matters referred to in Clause 17.1(i), (ii) and (iii)
by transferring its Facility Office pursuant to Clause 17.1 to the extent
that such expenses would not have occurred but for such transfer.
18. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
18.1 If, in relation to any 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 relevant 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 Assets Costs Rate (if applicable) and the cost
to such Bank (as certified by it in good faith to the Agent with a copy
to the Borrowers and expressed as a rate per annum) of funding such
Advance from whatever sources it may reasonably select.
19. ACCELERATION EVENT
If one or more Events of Default shall have occurred then at any time
thereafter and so long as the Event of Default in question is continuing
unremedied or unwaived, the Agent (if so instructed by the Requisite
Lenders) shall:-
(i) cancel the Commitments whereupon the same shall be so cancelled and
reduced to zero;
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and/or
(ii) declare any outstanding Advances to be immediately due and payable,
whereupon the same shall become so due and payable, together with
accrued interest thereon and all other sums due hereunder forthwith;
and/or
(iii) require each Borrower to provide security in respect of each Letter
of Credit issued at its request in a manner acceptable to the
Fronting Bank in the currency of each such Letter of Credit, it
being understood that in no event shall any Letter of Credit or the
obligations of the Fronting Bank thereunder be cancelled and
security equal to, and in the same currency as, the maximum amount
that can be drawn under each Letter of Credit outstanding at such
time shall be acceptable to the Fronting Bank.
20. DEFAULT INTEREST AND INDEMNITIES
20.1 If any amount of principal, Commitment Fee, or interest due and payable by
a Borrower hereunder is not paid on the due date therefor, a Borrower does
not reimburse the Fronting Lender for any drawing under a Letter of Credit
hereunder on the due date therefor, any fees (other than the Commitment
Fee) and other amounts payable by a Borrower hereunder are not paid within
ten days of the due date therefor, or if any sum due and payable by a
Borrower under any judgment of any court in connection herewith is not
paid in accordance with the requirements of such judgment, the period
beginning on such due date or, as the case may be, the date required by
such judgment and ending on the date upon which the obligation of the
relevant Borrower to pay such sum (the balance thereof for the time being
unpaid being herein referred to as an "UNPAID SUM") is discharged shall
be divided into successive periods, each of which (other than the first)
shall start on the last day of the preceding such period and the duration
of each of which shall (except as otherwise provided in this Clause 20)
be reasonably selected by the Agent.
20.2 During each such period relating thereto as is mentioned in Clause 20.1 an
unpaid sum shall bear interest at the rate per annum which is the sum from
time to time of two 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
relevant Borrower with a copy to the Agent) to be that which
expresses as a percentage rate per annum the cost to such person
of funding from whatever sources it may reasonably select its
portion of such unpaid sum for such period; and
(ii) if such unpaid sum is all or part of an Advance which became due and
payable on a day other than the last day of the Term thereof, the
first such period applicable thereto shall be of a duration equal
to the unexpired portion of that Term and the rate of interest
applicable thereto from time to time during such period shall be
that which exceeds by one 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 relevant
Borrower at the end of the period by reference to which
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it is calculated.
20.4 If any Lender or the Agent on its behalf receives or recovers all or any
part of an Advance made by such Lender otherwise than on the last day of
the Term thereof, the Borrower to whom such Advance was made shall pay to
the Agent on demand for the account of such Lender an amount equal to the
amount (if any) by which (i) the additional interest which would have been
payable on the amount so received or recovered had it been received or
recovered on the last day of the Term thereof exceeds (ii) the amount of
interest which in the opinion of the Agent would have been payable to the
Agent on the last day of the Term thereof in respect of a deposit in the
currency of the amount so received or recovered equal to the amount so
received or recovered placed by it with a prime bank in the London
Interbank Market for a period starting on the third business day following
the date of such receipt or recovery and ending on the last day of the
Term thereof.
20.5 Any unpaid sum shall (for the purposes of this Clause 20 and Clause 15) be
treated as an advance and accordingly in this Clause 20 and Clause 15 the
term "Advance" includes any unpaid sum and "Term", in relation to an
unpaid sum, includes each such period relating thereto as is mentioned in
Clause 20.1.
20.6 If any person receives an amount in respect of a Borrower's liability
under the Finance Documents or if that liability is converted into a
claim, proof, judgment or order in a currency other than the currency
(the "CONTRACTUAL CURRENCY") in which the amount is expressed to be
payable under the relevant Finance Document:
(i) that Borrower shall indemnify that person as an independent
obligation against any loss or liability arising out of or as
a result of the conversion;
(ii) if the amount received by that person, when converted into the
contractual currency at a market rate in the usual course of its
business, is less than the amount owed in the contractual currency,
that Borrower shall forthwith on demand pay to that person an amount
in the contractual currency equal to the deficit; and
(iii) that Borrower shall pay to the person concerned on demand any
exchange costs and taxes payable in connection with any such
conversion.
Each Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
21. CURRENCY OF ACCOUNT
21.1 A repayment or prepayment of an Advance, or a payment by a Borrower under
Clause 8.2, is payable in the currency in which that Advance or relevant
Amount Demanded, as the case may be, is denominated.
21.2 Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
21.3 Amounts payable in respect of costs, expenses, taxes and the like are
payable in the currency in which they are incurred.
21.4 Any other amount payable under this Agreement is, except as otherwise
provided in this Agreement,
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payable in Swiss francs.
22. PAYMENTS
22.1 On each date on which this Agreement requires an amount to be paid by a
Borrower or any of the Lenders hereunder, the relevant Borrower or, as the
case may be, such Lender shall make the same available in same day funds
to the Agent or to its account at such office or bank as it may notify to
the Borrower or Lender for this purpose.
22.2 On each date on which this Agreement requires an amount to be paid by a
Borrower or the Overdraft Provider in respect of any Short-Term Advances,
the relevant Borrower or, as the case may be, the Overdraft Provider shall
make the same available for value the same day by transfer to such account
with such bank in Zurich as the Overdraft Provider or, as the case may be,
such Borrower shall have specified for this purpose.
22.3 Save as otherwise provided herein, each payment received by the Agent for
the account of another person shall be made available by the Agent to such
other person (in the case of a Bank, for the account of its Facility
Office) for value the same day by transfer to such account of such person
with such bank in the principal financial centre of the relevant currency
as such person shall have previously notified to the Agent.
22.4 All payments required to be made by a Borrower hereunder shall be
calculated without reference to any set-of or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
22.5 Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to that
other person until it has been able to establish to its satisfaction that
it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to
whom such sum was so made available shall on request refund the same to
the Agent together with an amount sufficient to indemnify the Agent
against any cost or loss it may have suffered or incurred by reason of
its having paid out such sum prior to its having received such sum.
23. SET-OFF AND NETTING OF PAYMENTS
23.1 Each Borrower authorises each Lender upon the occurrence of an Event of
Default and consequent acceleration of the obligations of such Borrower
hereunder pursuant to Clause 19 hereof to apply any credit balance to
which such Borrower is entitled on any account of that Borrower with that
Lender in satisfaction of any sum due and payable from such Borrower to
such Lender hereunder but unpaid; for this purpose, each Lender is
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 relevant Borrower of any such
application. No Lender shall be obliged to exercise any right given to it
by this Clause 23.
23.2 If, on any occasion, the Agent receives a payment for the account of a
Borrower pursuant to Clause 22.1, the Agent may make available such
payment to the relevant Borrower by application:
(i) first, in or towards payment the same day of any amount then due
from such Borrower hereunder to the person from whom the amount was
so received; and
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(ii) secondly, in or towards payment the same day to the account of such
Borrower with such Lender in Zurich as such Borrower shall have
previously notified to the Agent for this purpose.
24. REDISTRIBUTION OF PAYMENTS
24.1 Subject to Clause 24.2, if, at any time, the proportion which any Bank (a
"RECOVERING BANK") has received or recovered (whether by payment, the
exercise of a right of set-off or combination of accounts or otherwise) in
respect of its portion of any payment (a "RELEVANT PAYMENT") to be made
under this Agreement by either Borrower for account of such Recovering
Bank and one or more other Banks is greater (the portion of such receipt
or recovery giving rise to such excess proportion being herein called an
"EXCESS AMOUNT") than the proportion thereof so received or recovered by
the Bank or Banks so receiving or recovering the smallest proportion
thereof, then:
(i) such Recovering Bank shall pay to the Agent an amount equal to such
excess amount;
(ii) there shall thereupon fall due from the relevant Borrower to such
Recovering Bank an amount equal to the amount paid out by such
Recovering Bank pursuant to paragraph (i) above, the amount so due
being, for the purposes hereof, treated as if it were an unpaid part
of such Recovering Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (i) above as if such
amount had been received by it from the relevant Borrower
in respect of such relevant payment and shall pay the same
to the persons entitled thereto (including such Recovering
Bank) PRO RATA to their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to
enforce its rights hereunder and, as a result thereof or in connection
therewith, shall receive any excess amount (as defined in Clause 24.1),
then such Bank shall not be required to share any portion of such excess
amount with any Bank which has the legal right to, but does not, join in
such action or proceeding or commence and diligently prosecute a separate
action or proceeding to enforce its rights in another court.
25. FEES
Pelikan Produktions AG shall pay to the Agent for account of each Bank a
Commitment Fee (the "COMMITMENT FEE") on the amount of such Bank's
Available Commitment (less, if such Bank is also the Overdraft Provider,
the Overdraft Provider's outstanding Short-Term Advances on such day) from
day to day during the period beginning on 24th February, 1995 and ending
on the Termination Date at the applicable Commitment Fee Percentage per
annum and payable in 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 Swiss Franc Amount.
26. COSTS AND EXPENSES
26.1 Except as otherwise agreed in writing by the Agents, Arrangers and the
Borrowers, whether or not the Closing Date shall occur, Pelikan
Produktions AG 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 Document (as defined in the Credit
Agreements) or other Finance Documents, for:
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(i) all reasonable costs of furnishing all opinions required hereunder
by counsel for the Borrowers (including, without limitation, any
opinions reasonably requested by such Agent as to any legal matters
arising hereunder or under any Security Document) and of the
Borrowers' compliance with all agreements and conditions contained
herein or in any Finance Document on its part to be performed or
complied with together with any VAT thereon;
(ii) the reasonable fees, expenses and disbursements of counsel to such
Agent together with any VAT thereon properly incurred in connection
with the negotiation, preparation, execution and administration of
this Agreement and the Finance Documents, each Advance made, and
each Letter of Credit issued, thereunder and any amendments and
waivers thereto;
(iii) all the actual costs and expenses of creating and perfecting any
encumbrance in 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 reasonable 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 workout or collection of any of the obligations of the Borrowers
under this Agreement and the Finance Documents or enforcement of
this Agreement or the Finance Documents;
(v) all reasonable accountable out-of-pocket expenses (including travel
and due diligence expenses) incurred by 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 hereunder.
26.2 If Pelikan Produktions AG fails to perform any of their obligations under
Clause 26.1, each Bank shall, in its Proportion, indemnify each Agent and
Arranger against any loss incurred by it as a result of such failure and
the Borrowers shall forthwith reimburse each Bank for any payment made by
it pursuant to Clause 26.1.
26.3 In addition to the provisions of Clause 26.1 and whether or not the
Closing Date shall occur, Pelikan Produktions AG agrees to
indemnify, pay and hold each Agent and each Lender, and their
respective officers, directors, employees, agents, and affiliates
(collectively called the "INDEMNITIES") 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 Indemnity shall be designated a party
thereto, that may be imposed on, incurred by, or asserted against that
Indemnity, 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
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or assets of the Borrowers or any of their respective subsidiaries
(the "INDEMNIFIED LIABILITIES") Provided that the Borrowers shall have
no obligation under this Clause 26.3 to any Indemnity arising from the
fraud, gross negligence, wilful misconduct or wilful breach of this
Agreement or any Finance Document by any party hereto and its related
Indemnities.
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 Bank is that identified with
its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee) until
it has received from such Bank a notice designating some other
office of such Bank to replace its Facility Office and act upon any
such notice until the same is superseded by a further such notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
(iv) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of the Borrowers upon a certificate signed
by or on behalf of the Borrowers;
(v) rely upon any communication or document believed by it to be
genuine;
(vi) refrain from exercising any right, power or discretion vested in
it as Agent under any Finance Document unless and until instructed
by the Requisite Lenders as to whether or not
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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 either Borrower in connection herewith or for the legality,
validity, effectiveness, adequacy or enforceability of this Agreement or
any other Finance Document and the Agent, 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 either Borrower.
27.9 Each of the Agent and the Collateral Agent may resign its appointment
hereunder at any time without assigning any reason therefor by giving not
less than thirty days' prior written notice to that effect to each of the
other parties hereto and by appointing any of its affiliates in its stead,
such appointment to take effect from the date of resignation of the
resigning agent.
27.10 If a successor to the Agent or the Collateral Agent is appointed under
the provisions of 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 Borrowers
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 Borrowers in
connection with any Finance Document or the transactions therein
contemplated (whether or not such information has been or is
hereafter circulated to such Lender by the Agent, 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 either Borrower.
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
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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 either Borrower
in any capacity in relation to any other matter, any information given by
the relevant 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 enure to the benefit of each
party hereto and its or any subsequent successors, Transferees,
Overdraft Facility Transferees and permitted assigns.
29. ASSIGNMENTS AND TRANSFERS BY THE BORROWERS
Neither Borrower shall be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
30. ASSIGNMENTS AND TRANSFERS BY BANKS, CHANGE OF OVERDRAFT PROVIDER
30.1 Any Bank may, at any time, assign all or any of its rights and benefits
hereunder, sell participations in, or transfer in accordance with Clause
30.3 (but not otherwise) all or any of its rights, benefits and
obligations hereunder to any person Provided that:
(i) no such assignment or transfer may be made:
(a) unless the Bank also transfers or assigns to the same person a
pro rata share of its rights, benefits and obligations (if any)
under the Credit Agreement and the UK Facility;
(b) without the prior written consent of the Borrowers, 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;
(d) if the result thereof, at the time of such transfer or
assignment or immediately thereafter, would be that either
Borrower would be liable to pay an additional amount or
amounts pursuant to Clauses 14 or 15 which additional amount
or amounts would not have been payable had no such transfer
or assignment occurred unless such Transferee or assignee
agrees to waive its rights to receive such additional amount
or amounts; and
(ii) no such participation may be made unless:
(a) the relevant Bank remains the lender of record hereunder and
the proposed participant does not become the lender of record
hereunder;
(b) the relevant Bank's obligations hereunder shall remain
unchanged and it shall remain solely responsible for the
performance thereof;
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(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 each 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 Borrowers and the Agent of a
duly completed and duly executed Transfer Certificate in which event,
on the later of the Transfer Date specified in such Transfer Certificate
and the fifth business day after (or such earlier business day endorsed
by the Agent on such Transfer Certificate falling on or after) the date
of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder, the Borrowers and such Bank shall be released from
further obligations towards one another hereunder and their
respective rights against one another shall be cancelled (such
rights, benefits and obligations being referred to in this Clause
30.3 as "discharged rights and obligations");
(ii) the Borrowers and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations
only insofar as the Borrowers and such Transferee have assumed
and/or acquired the same in place of the Borrowers and such Bank;
(iii) the Agent, 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
(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.
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30.4 On the date upon which a transfer takes effect pursuant to Clause 30.3,
the Transferee in respect of such transfer shall pay to the Agent for its
own account a transfer fee of L500.
30.5 Pelikan Produktions AG may, at any time and from time to time, upon notice
to the Agent, request that a different Lender specified by Pelikan
Produktions AG be appointed as the Overdraft Provider. Promptly upon such
other Lender agreeing to such request and repayment of all outstanding
Short-Term Advances together with accrued interest thereon to the existing
Overdraft Provider, the existing Overdraft Provider shall transfer to such
Lender all (but not part) of its rights, benefits and obligations
hereunder as the Overdraft Provider.
Any transfer contemplated by this Clause 30.5 shall be effected by the
delivery to the Borrowers and the Agent of a duly completed and duly
executed Overdraft Provider Transfer Certificate in which event, on the
later of the Transfer Date specified in such certificate and the fifth
business day after (or such earlier business day endorsed by the Agent on
such certificate falling on or after) the date of delivery of such
certificate to the Agent:
(i) the Borrowers and the Overdraft Provider shall be released from
further obligations towards one another hereunder and their
respective rights against one another shall be cancelled;
(ii) the Borrowers and the Overdraft Facility Transferee shall acquire
the same rights and benefits and assume the same obligations
towards one another as they would have acquired and assumed had the
Overdraft Facility Transferee been an original party hereto as the
Overdraft Provider; and
(iii) the Agents, the 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 Borrowers (including, without limitation, the reports
delivered pursuant to the Third Schedule to the Original Agreement)
but may, in any event, make disclosures reasonably required by any
bona fide assignee, Transferee, Overdraft Facility Transferee or
participant (or prospective assignee, Transferee or participant) in
connection with the contemplated assignment or transfer of any of its
rights and obligations thereunder Provided that (a) such assignee,
Transferee, Overdraft Facility Transferee, participant or person
agrees to comply with the provisions of this Clause 31, (b) such
prospective assignee, Transferee, Overdraft Facility Transferee or
participant shall have executed a confidentiality agreement
substantially in the form of the Exhibit; and (c) no Lender shall be
obliged or required to return any written information or other
materials furnished by the Borrowers in connection with any Finance
Document. Notwithstanding the foregoing, the Agents and/or any Lender
shall be entitled to disclose any such information:
(i) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for
discovering documents or otherwise; or
(ii) if required by any law or regulation having the force of law; or
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(iii) pursuant to any requirement or request of any fiscal, monetary,
tax, governmental or other competent authority; or
(iv) to its auditors, legal or other professional advisors; or
(v) which is in the public domain,
and unless specifically prohibited by applicable law or court order, such
Lender shall notify the Borrowers of any disclosure pursuant to paragraphs
(i), (ii) and (iii).
32. CALCULATIONS AND EVIDENCE OF DEBT
32.1 Interest and Commitment Fee shall accrue from day to day and shall be
calculated on the basis of a year of 360 days or (in the case of interest
payable on an amount denominated in sterling) 365 days and the actual
number of days elapsed.
32.2 Letter of Credit commission in respect of any Letter of Credit, and any
period of the Term thereof determined pursuant to Clause 9, shall be
calculated on the basis of a year of 360 days or (in the case of a Letter
of Credit denominated in sterling) 365 days and the actual number of days
in such period (or, in any case where market practice differs, in
accordance with market practice).
32.3 If on any occasion a Reference Bank or Bank fails to supply the Agent with
a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent.
32.4 Each Lender shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
32.5 The Agent shall maintain on its books a control account or accounts in
which shall be recorded (i) the amount of any Advance made or arising
hereunder (and the name of the Lender to which such sum relates) and the
face amount of any Letter of Credit issued (and each Lender's share
therein), (ii) the amount of all principal, interest and other sums due or
to become due from either Borrower to any of the Lenders hereunder and
each Lender's share therein and (iii) the amount of any sum received or
recovered by the Agent hereunder and each Lender's share therein.
32.6 In any legal action or proceedings arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clauses 32.4 and 32.5 shall in the absence of manifest error be conclusive
evidence of the existence and amounts of the obligations of the Borrowers
therein recorded.
32.7 A certificate of a Lender as to (i) the amount by which a sum payable to
it hereunder is to be increased under Clause 14 or (ii) the amount for the
time being required to indemnify it against any such cost, payment or
liability as is mentioned in Clause 15 shall, in the absence of manifest
error, be conclusive for the purposes of this Agreement.
32.8 Each Lender hereby represents that as at 24th February, 1995 (i) its
participation as a Lender hereunder and extension of credit in respect
hereof will not require registration or qualification under any applicable
securities laws nor is it illegal (as referred to in Clause 16), and (ii)
it is a Qualifying Lender. Barclays Bank PLC represents that as at the
date hereof Barclays Overdraft Agent is a person recognised as a bank
pursuant to Clause 232 of the Circular of Swiss Federal Tax
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33
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Authorities, dated 29th October, 1992 regarding the tax treatment of
syndicated loans, debt certificate issues, promissory notes and
subparticipations.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent, 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
as the Overdraft Facility Transferee) and shall be deemed to have been
made or delivered when despatched and the appropriate answerback received
(in the case of any communication made by telex) or (in the case of any
communication made by letter) when left at that address or (as the case
may be) ten days after being deposited in the post postage prepaid in an
envelope addressed to it at that address Provided that any communication
or document to be made or delivered to the Agent shall be effective only
when received by the Agent and then only if the same is expressly marked
for the attention of the department or officer identified with the Agent's
signature below (or such other department or officer as the Agent shall
from time to time specify for this purpose).
35.3 Where any provision of this Agreement specifically contemplates
telephone or telefax communication made by one person to another, such
communication shall be made to that other person at the relevant
telephone number specified by it from time to time for the purpose and
shall be deemed to have been received when made (in the case of any
communication by telephone) or when transmission has been completed
(in the case of any telecommunication by telefax). Each such telefax
communication, if made to the Agent by a Borrower shall be signed by
the person or persons authorised by that Borrower in the certificate
delivered pursuant to the Third Schedule and shall be expressed to be
for the attention of the department or officer whose name has been
notified for the time being for that purpose by the Agent to the
Borrowers.
35.4 Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language
or accompanied by a translation thereof into English
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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 Borrowers; except
that any amendment, modification, termination, or waiver that (i)
changes the amount of the Commitments or the principal amount of the
Advances or extends the scheduled maturity thereof or changes the
currency of any payment hereunder; (ii) changes any Proportion or the
definition of "Requisite Lenders"; (iii) extends the dates on which
interest is or fees are payable hereunder, or the maximum duration of
interest periods; or (iv) reduces any interest rates payable on the
Advances or any fees (other than administrative fees) payable
hereunder or under any other Finance Document, each shall be effective
only if evidenced by a writing signed by or on behalf of all Lenders
under this Agreement and the Borrowers; Provided, however, that (A)
the First Schedule and the Commitments and Proportions shall be
amended from time to time to give effect to the Commitments and
Proportions of each new Bank that becomes a party to this Agreement at
the time such Bank becomes a Bank and (B) any amendment, modification
or waiver that changes any administrative fees, or the times at which
such fees are payable, hereunder shall be effective only if evidenced
by a writing signed by or on behalf of the Borrowers and each Lender
affected thereby. Any amendment, modification, termination or waiver
of any of the conditions precedent to funding an Advance shall be
effective only if evidenced by a writing signed by or on behalf of the
Requisite Lenders and the Borrowers. No amendment, modification,
termination or waiver of any provision of the agency provisions of
this Agreement shall be effective without the written concurrence of
the Agents, the Requisite Lenders and the Borrowers. No amendment,
modification, termination or waiver of any Finance Document that
releases any guarantor or releases any collateral under the Security
Documents not otherwise permitted under the Credit Agreement or such
Security Document shall be effective unless evidenced by a writing
signed by or on behalf of Banks having 80% or more of the combined
aggregate amount of the Commitments under this Agreement or, in the
case of the Commitment under this Agreement that has been terminated,
the Outstandings, if any, made hereunder. The Agent may, but shall
have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such
Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No
notice to or demand on either Borrower shall entitle such Borrower to
any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or
consent with respect to this Agreement effected in accordance with
this Clause 37 shall be binding upon the Borrowers.
38. BORROWER SECESSION
In the event that any Borrower is required to make any
additional payment to a Lender pursuant to Clauses 14 or 18.2 or any
Lender claims indemnification under Clauses 15.1 or 15.2 or an event
referred to in Clause 16 occurs and such requirement, claim or
consequence of such event would be
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avoided or mitigated by that Borrower ceasing to be a Borrower hereunder
then subject to the Borrower being under no actual obligation or
contingent payment obligation under or pursuant to any Finance Document,
it may cease to be a Borrower hereunder with the prior written consent
of the Agent and upon receipt by the Agent of a Borrower Secession
Memorandum.
39. GUARANTEE BY PELIKAN PRODUKTIONS AG
39.1 As consideration for Banks and the Overdraft Provider agreeing to enter
into this Agreement and extend the Commitments and Short-Term
Advances, as applicable, hereunder, Pelikan Produktions AG hereby
unconditionally and irrevocably guarantees the due and punctual
payment when due of all Obligations of Pelikan Hardcopy
(International) AG. For purposes of this Part 15: (i) Pelikan
Produktions AG is referred to as a "Guarantor" and the obligations of
Pelikan Produktions AG under this Clause 39.1 are referred to as this
"Guarantee" and (ii) "Obligations" shall mean all obligations and
liabilities of Pelikan Hardcopy (International) AG owed to Agents,
Arrangers, the Fronting Bank, or Lenders (or any of them) under this
Agreement or any of the other Finance Documents.
39.2 The Guarantor waives presentation of, demand of, payment from and protest
of any Obligation of Pelikan Hardcopy (International) AG and also
waives notice of protest for non-payment. The obligations of the
Guarantor under this Guarantee shall not be affected by, and the
Guarantor hereby waives its rights (to the extent permitted by
applicable law) in connection with:
(a) the failure of any Agent, Arranger, the Fronting Bank or any Lender
to assert any claim or demand or to enforce any right or remedy
against Pelikan Hardcopy (International) AG under the provisions of
this Agreement or any other agreement or otherwise;
(b) any extension or renewal of any provision thereof;
(c) any increase in the amount of the Obligations;
(d) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Agreement (subject to Clause 37) or any
instrument executed pursuant hereto;
(e) the release of any of the security held by any party for the
Obligations of Borrowers;
(f) the failure of any Agent, Arranger, the Fronting Bank or any Lender
to exercise any right or remedy against any other guarantor of the
Obligations;
(g) any Agent, Arranger, the Fronting Bank or any Lender taking and
holding security or collateral for the payment of this Guarantee,
any other guarantees of the Obligations or other liabilities of
Pelikan Hardcopy (International) AG and the Obligations guaranteed
hereby, and exchanging, enforcing, waiving and releasing any such
security or collateral;
(h) any Agent, Arranger, the Fronting Bank or any Lender applying any
such security or collateral and directing the order or manner of
sale thereof as Collateral Agent and Agent in their discretion,
may determine; or
(i) any Agent, Arranger, the Fronting Bank or any Lender settling,
releasing, compromising, collecting or otherwise liquidating the
Obligations and any security or collateral therefor in any manner
determined by the applicable Agent, Arranger, the Fronting Bank or
such Lender.
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The obligations of the Guarantor under this Guarantee shall not be
subject to any reduction, limitation, impairment or termination for
any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to any defence or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability
of the Obligations, discharge of Pelikan Hardcopy (International) AG
from the Obligations in a bankruptcy or similar proceeding or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor under this Guarantee shall not be
discharged or impaired or otherwise affected by the failure of any
Agent, Arranger, the Fronting Bank or any Lender to assert any claim
or demand or to enforce any remedy under this Agreement or any other
agreement, by any waiver or modification of any provision thereof, by
any default, failure or delay, wilful or otherwise, in the performance
of the Obligations, or by any other act or thing or omission or delay
to do any other act or thing that may or might in any manner or to any
extent vary the risk of the Guarantor or would otherwise operate as a
discharge of the Guarantor as a matter of law or equity.
Any Agent may, at its or their election, foreclose on any security
held by them by one or more judicial or nonjudicial sales, or exercise
any other right or remedy any Agent may have against Guarantor,
Pelikan Hardcopy (International) AG or any security without affecting
or impairing in any way the liability of the Guarantor hereunder
except to the extent the Obligations have been paid. The Guarantor
waives any defense arising out of such election by an Agent, even
though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the Guarantor
against Pelikan Hardcopy (International) AG or any security, so long
as such Agent has acted in a commercially reasonable manner.
The Guarantor further agrees that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any of
the Obligations is rescinded or must otherwise be restored by any
Agent, Arranger, the Fronting Bank or any Lender upon the bankruptcy
or reorganization of Pelikan Hardcopy (International) AG or otherwise.
The Guarantor further agrees, in furtherance of the foregoing and not
in limitation of any other right that any Agent, Arranger, the
Fronting Bank or any Lender may have at law or in equity against the
Guarantor by virtue hereof, upon the failure of Pelikan Hardcopy
(International) AG to pay any of the Obligations when and as the same
shall become due (whether by required prepayment, declaration, demand
or otherwise), the Guarantor will forthwith pay, or cause to be paid,
in cash, to an Agent an amount equal to the sum of the unpaid
principal amount of such Obligations, accrued and unpaid interest on
such Obligations and all other Obligations of Pelikan Hardcopy
(International) AG to any Agent, Arranger, the Fronting Bank or such
Lender.
So long as any of the Obligations shall remain outstanding hereunder,
Guarantor hereby irrevocably waives any right of subrogation,
contribution, indemnity or otherwise against Pelikan Hardcopy
(International) AG that may arise out of or be caused by this
Guarantee, all rights and/or claims against Pelikan Hardcopy
(International) AG which may arise against Pelikan Hardcopy
(International) AG by reason of this Guarantee, any right to enforce
any remedy that any Lenders now have or may hereafter have against
Pelikan Hardcopy (International) AG and any benefit of, and any right
to participate in, any security now or hereafter held by or on behalf
of Lenders.
Notwithstanding anything contained in this Clause 39.2 to the
contrary, this Guarantee shall not be effective or in full force and
effect until the Closing Date.
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40. LAW
This Agreement shall be governed by, and shall be construed in accordance
with, English law.
41. JURISDICTION
41.1 Each Borrower hereby irrevocably agrees for the benefit of each of the
other parties hereto that the courts of England shall have jurisdiction to
hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Agreement and,
for such purposes irrevocably submits to the jurisdiction of such courts.
41.2 Each Borrower irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 41.1 being nominated as
the forum to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any such court is not a convenient
or appropriate forum.
41.3 Each Borrower agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection
with any suit, action or proceeding in England to Pelikan Scotland Limited
at βββββββββ βββ, βββββ, βββββββββ, ββββββββββββ βββ AUJ or other its
registered office for the time being. If the appointment of the person
mentioned in this Clause 41.3 ceases to be effective each Borrower shall
immediately appoint a further person in England to accept service of
process on its behalf in England and, failing such appointment within 15
days, the Agent shall be entitled to appoint such a person by notice to
the Borrowers. Nothing contained herein shall affect the right to serve
process in any other manner permitted by law.
41.4 The submission to the jurisdiction of the courts referred to in Clause 41
shall not (and shall not be construed so as to) limit the right of any
party to take proceedings against any other party in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted
by applicable law.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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THE FIRST SCHEDULE
THE BANKS
BANK COMMITMENT (CHF)
Barclays Bank PLC 7,000,000
NationsBank N.A. 16,525,000
Commerzbank AG 5,000,000
Deutsche Bank AG 5,000,000
The First National Bank of Chicago 5,000,000
Societe Generale 4,925,000
ABN AMRO Bank N.V. 3,275,000
Credit Lyonnais, S.A. 3,275,000
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THE SECOND SCHEDULE
FORM OF TRANSFER CERTIFICATE
To: Barclays Bank PLC
Pelikan Produktions ββ
βββββββ Hardcopy (International) AG
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 Produktions AG and Pelikan Hardcopy (International) AG as borrowers by a
group of banks on whose behalf Barclays Bank PLC acted as agent in connection
therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank and Transferee
are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S COMMITMENT" or "ADVANCE(S)" accurately 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(s) 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
Borrowers.
5. The Transferee hereby undertakes with the Borrowers, the Bank and each of
the other parties to the Facility Agreement that it will perform in
accordance with their terms all those obligations which by the terms of the
Facility Agreement will be assumed by it after delivery of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take effect. The
Transferee hereby makes the representations made by each Bank in Clause
32.8 of the Facility Agreement as though made on and as of the date hereof.
6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto
and assumes no responsibility for the financial condition of the Borrowers
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or for the performance and observance by the Borrowers of any of their
respective obligations under the Facility Agreement or my document relating
thereto and any and all such conditions and warranties, whether express or
implied by law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility
Agreement (or any document relating thereto) shall oblige the Bank to (i)
accept a re-transfer from the Transferee of the whole or any part of its
rights, benefits and/or obligations under the Facility Agreement
transferred pursuant hereto or (ii) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including, without limitation, the non-performance by the
Borrowers or any other party to the Facility Agreement (or any document
relating thereto) of its obligations under any such document. The
Transferee hereby acknowledges the absence of any such obligation as is
referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
THE SCHEDULE
1 Bank:
2 Transferee:
3. Transfer Date:
4 Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Term and Repayment Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By. By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
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41
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Telefax:
Telephone:
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42
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THE THIRD SCHEDULE
CONDITIONS PRECEDENT
Each of the following:
1. A certificate of the secretary or a director of each Borrower certifying
that the copy of its constitutive documents delivered to the Agent in
connection with the Original Agreement (as amended, where applicable, by
any variation thereof which has itself been delivered to the Agent and
certified correct, complete and in full force and effect) remains correct,
complete and in full force and effect.
2. A copy of a resolution of the Board of Directors of each Borrower:
(a) approving the terms of this Agreement and all other documents to be
executed by such Borrower in connection herewith; and
(b) 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 each 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 each Borrower confirming that no Event of
Default or Potential Event of Default will be in existence immediately
after the transactions due to take place on the Closing Date (as defined in
the Credit Agreement) have taken place.
6. A legal opinion relating to this Supplemental Agreement from βββββ & Overy,
English legal advisers to the Agent, in form and substance satisfactory to
the Agent.
Each copy document delivered under this part of this schedule by a Borrower
shall be certified by a director or the secretary of the relevant Borrower, as
at the date hereof (or such other date as the Agent may agree), to be correct,
complete and in full force and effect as at such date.
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THE FOURTH SCHEDULE
UTILISATION REQUEST
From: Pelikan Produktions AG/Pelikan Hardcopy (International) AG
To: [Barclays Bank PLC]/[Overdraft Provider]
Dated:
Dear Sirs,
1. We refer to the amended and restated agreement (the "FACILITY AGREEMENT")
dated 15th October, 1996 and made between Pelikan Produktions AG and
Pelikan Hardcopy (International) AG as borrowers, 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] 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 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 PRODUKTIONS AG/PELIKAN HARDCOPY (INTERNATIONAL) AG
____________________
** Delete as appropriate
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THE FIFTH SCHEDULE
TIMETABLES
UTILISATION BY MEANS OF ADVANCES OTHER THAN SHORT-TERM ADVANCES
"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-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
recipient of Letter of Credit (7.2(iii)) D-3 3.00 p.m.
3. where applicable, form of Letter
of Credit to be agreed (7.2(iv)) D-3 3.00 p.m.
4. A to notify Bs of allocations (6.4) D 10.00 a.m.
5. Letter of Credit to be issued (7.2) D 3.00 p.m.
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45
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THE SIXTH SCHEDULE
FORM OF BORROWER SECESSION MEMORANDUM
To: Barclays Bank PLC
From: Pelikan Produktions AG and
Pelikan Hardcopy (International) AG
Dated:
Dear Sirs,
1. We refer to the amended and restated agreement (the "FACILITY AGREEMENT")
dated 15th October, 1996 and made between ourselves as borrowers, Barclays
Bank PLC as agent, NationsBank of Texas, N.A. as collateral and
documentation agent, the financial institutions defined therein as Banks
and others.
2 Terms defined in the Facility Agreement shall bear the same meaning herein.
3. We hereby declare that [name of Borrower] is under no actual or contingent
obligation under or pursuant to any Finance Document in its capacity as a
Borrower.
4. Accordingly, pursuant to Clause 38 of the Facility Agreement and with
effect from receipt of this notice, [name of relevant Borrower] shall cease
to be a Borrower under the Facility Agreement.
Yours faithfully
For and on behalf of
Pelikan Produktions AG and
Pelikan Hardcopy (International) AG
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THE SEVENTH SCHEDULE
MANDATORY LIQUID ASSET COSTS RATE FORMULA
The Mandatory Liquid Asset Costs Rate to compensate the Banks for the cost
attributable to an Advance or other sum denominated in sterling for any period
for which such cost is to be computed under this Agreement resulting from the
imposition from time to time by the Bank of England (or other Governmental
authorities or agencies) of a requirement to place non-interest-bearing deposits
with the Bank of England, for the payment of Special Deposits and the
maintenance of secured money with certain financial institutions (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(β-β)
--------------------
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 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
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47
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set out above.
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48
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THE EIGHTH SCHEDULE
FORM OF OVERDRAFT PROVIDER TRANSFER CERTIFICATE
To: Barclays Bank PLC, as Agent
Pelikan Produktions ββ
βββββββ Hardcopy (International) AG
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 Produktions AG and Pelikan Hardcopy (International) AG as borrowers by a
group of banks on whose behalf Barclays Bank PLC acted as agent in connection
therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Overdraft Provider and
Overdraft Facility Transferee are defined in the schedule hereto.
2. The Overdraft Provider requests the Overdraft Facility Transferee to accept
and procure the transfer to the Overdraft Facility Transferee the
obligation to make Short-Term Advances pursuant to the Facility Agreement
by counter-signing and delivering this Overdraft Provider Transfer
Certificate to the Agent at its address for the service of notices
specified in the Facility Agreement.
3. The Overdraft Facility Transferee hereby requests the Agent to accept this
Overdraft Provider Transfer Certificate as being delivered to the Agent
pursuant to and for the purposes of Clause 30.5 of the Facility Agreement
so as to take effect in accordance with the terms thereof on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. The Overdraft Facility Transferee confirms that it has received a copy of
the Facility Agreement, together with such other information as it has
required in connection with this transaction and that it has not relied and
will not hereafter rely on the Overdraft Provider to check or enquire on
its behalf into the legality, validity, effectiveness, adequacy, accuracy,
or completeness of any such information and further agrees that it has not
relied and will not rely on the Overdraft Provider to assess or keep under
review on its behalf the financial conditions, creditworthiness, condition,
affairs, status or nature of the Borrowers.
5. The Overdraft Facility Transferee hereby undertakes with the Borrowers, the
Overdraft Provider and each of the other parties to the Facility Agreement
that it will perform in accordance with their terms all the obligations of
the Overdraft Provider under the Facility Agreement after delivery of this
Overdraft Provider Transfer Certificate to the Agent and satisfaction of
the conditions (if any) subject to which this Overdraft Provider Transfer
Certificate is expressed to take effect. The Overdraft Facility Transferee
hereby makes the representations made by the Overdraft Provider in Clause
32.8 of the Facility Agreement as though made on and as of the date hereof.
6. The Overdraft Provider makes no representation or warranty and assumes no
responsibility with
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49
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respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating
thereto and assumes no responsibility for the financial condition of
the Borrowers or for the performance and observance by the Borrowers
of any of their respective obligations under the Facility Agreement or
any document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. The Overdraft Provider hereby gives notice that nothing herein or in the
Facility Agreement (or any document relating thereto) shall oblige the
Overdraft provider to (i) accept a re-transfer from the Overdraft Facility
Transferee of the whole or any part of its rights, benefits and/or
obligations under the Facility Agreement transferred pursuant hereto or
(ii) support any losses directly or indirectly sustained or incurred by the
Overdraft Facility Transferee for any reason whatsoever including, without
limitation, the non-performance by the Borrowers or any other party to the
Facility Agreement (or any documents relating thereto) of its obligations
under any such document. The Overdraft Facility Transferee hereby
acknowledges the absence of any such obligation as it referred to in (i) or
(ii) above.
8. This Overdraft Provider Transfer Certificate and the rights and obligations
of the parties hereunder shall be governed by and construed in accordance
with English law.
THE SCHEDULE
1. Overdraft Provider:
2. Overdraft Facility Transferee:
3. Transfer Date:
[TRANSFEREE OVERDRAFT [TRANSFEROR OVERDRAFT
PROVIDED] PROVIDER]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF
OVERDRAFT FACILITY TRANSFEREE
Address: Telex:
Contact Name: Telefax:
Account for Payments: Telephone:
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50
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51
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SIGNATORIES
THE BORROWERS
PELIKAN PRODUKTIONS AG
By: ββββ ββββββββββ
Address: ββββββββββββ βββ
ββ-ββββ βββ
βββββββββββ
Fax: (ββ-β) ββββ βββ
PELIKAN HARDCOPY (INTERNATIONAL) AG
By: ββββ ββββββββββ
Address: ββββββββββββ βββ
ββ-ββββ βββ
βββββββββββ
Fax: (ββ-β) ββββ βββ
THE ARRANGERS
BZW
By: βββββ ββββββ
Address: ββββββ βββββ
β βββββ ββββ βββββ
ββββββ ββββ βββ
Fax: ββββ βββ ββββ
NATIONSBANC CAPITAL MARKETS, INC.
By: βββ ββββββ
Address: βββ ββββ ββββββ
ββββ βββββ
ββββββ, βββββ βββββ
Fax: (βββ) βββ-ββββ
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52
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THE AGENT
BARCLAYS BANK PLC
By: βββββ ββββββ
Address: ββββββ βββββ
β βββββ ββββ βββββ
ββββββ ββββ βββ
Fax: ββββ βββ ββββ
THE COLLATERAL AGENT
NATIONSBANK OF TEXAS, N.A.
By: βββ βββββββ
Address: βββ ββββ ββββββ
ββββ βββββ
ββββββ, βββββ βββββ
β.β.β.
Fax: (βββ) βββ ββββ
THE DOCUMENTATION AGENT
NATIONSBANK OF TEXAS, N.A.
By: βββ βββββββ
Address: βββ ββββ ββββββ
ββββ βββββ
ββββββ, βββββ βββββ
β.β.β.
Fax: (βββ) βββ ββββ
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53
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THE FRONTING BANK
BARCLAYS BANK PLC
By: βββββ ββββββ
Address: ββββββ βββββ
β βββββ ββββ βββββ
ββββββ ββββ βββ
Fax: ββββ βββ ββββ
THE OVERDRAFT PROVIDER
BARCLAYS BANK PLC
By: βββββ ββββββ
Address: c/o: BARCLAYS BANK (SCHWEIZ) AG
βββββββββββββ ββ,
ββββββββ ββββ
ββ-ββββ ββββββ
βββββββββββ
Fax: (41)(β) βββ ββββ
THE BANKS
BARCLAYS BANK PLC
By: βββββ ββββββ
Address: ββββββ βββββ
β βββββ ββββ βββββ
ββββββ ββββ βββ
Fax: ββββ βββ ββββ
NATIONSBANK, N.A.
By: βββ βββββββ
Address: βββ ββββ ββββββ
ββββ βββββ
ββββββ, βββββ βββββ
β.β.β.
Fax: (214) 5080)980
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THE FIRST NATIONAL BANK OF CHICAGO
By: βββββββ βββββ
Address: Geographical Credit
One First ββββββββ βββββ, ββββ βββββ ββββ
βββββββ, ββββββββ βββββ-ββββ
Fax: (βββ) βββ ββββ
COMMERZBANK AG
By: β. ββββββ β. βββββββ
Address: Atlanta Agency
Promenade Two, Suite 3500
ββββ βββββββββ ββββββ, β.β.
βββββββ, βββββββ βββββ
Fax: (βββ) βββ ββββ
DEUTSCHE BANK AG LONDON
By: ββββ ββββββββββ ββββ βββββββ
Address: β-β βββββββββββ
ββββββ ββββ βββ
Fax: (ββββ) βββ ββββ
SOCIETE GENERALE
By: βββββββ ββββββββ
Address: ββββββββ ββββ Center
ββββ ββββ ββββββ, βββββ ββββ
ββββββ, βββββ βββββ
Fax: (βββ) βββ ββββ
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ABN AMRO BANK, N.V.
By: ββββββ βββββ βββββ βββ
Address: βββββ ββββββββ, βββββ ββββ
βββββββ, βββββ βββββ
Fax: (βββ) βββ ββββ
CREDIT LYONNAIS, S.A.
By: ββββββββ βββββββ
Address: βββ βββββ βββββ, βββββ ββββ
ββββββ, βββββ βββββ
Fax: (βββ) βββ ββββ
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56
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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 2 June, 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 Produktions AG and Pelikan Hardcopy (International) AG as borrowers,
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 Borrowers:
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
agrees that all financial statements, financial projections, operating or other
data, tax returns, reports and other information, that have been or may be
provided to (i) Prospective [assignee/Transferee/participant/Overdraft Facility
Transferee], (ii) the employees and agents of Prospective [assignee/Transferee/
participant/Overdraft Facility Transferee], and/or (iii) accountants, attorneys
or other professionals retained by such parties whether delivered by either
Borrower or otherwise shall be kept strictly confidential by such recipients,
and shall be used solely in connection with its consideration of [an assignment/
a transfer/a participation/the appointment of a new Overdraft Provider] in
respect of the Credit Agreement; PROVIDED, that Prospective [assignee/
Transferee/participant/Overdraft Facility Transferee] may, in any event,
disclose any such information:
(i) if required to do so by an order of a court of competent jurisdiction
whether in pursuance of any procedure for discovering documents or
otherwise; or
(ii) if required by any law or regulation having the force of law; or
(iii) pursuant to any requirement or request of any fiscal, monetary,
tax, governmental or other competent authority; or
(iv) to its auditors, legal or other professional advisors; or
(v) which is in the public domain,
and unless specifically prohibited by applicable law or court order, the
prospective assignee/Transferee/or participant shall notify the Borrowers of
any disclosure pursuant to paragraphs (i), (ii) and (iii). In no event shall
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee] be
obligated or required to return any materials furnished by either Borrower.
This deed shall be governed by and construed and enforced in accordance with,
the laws of England.
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
hereby irrevocably agrees for the benefit of the Borrowers that the courts of
England shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this deed and,
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57
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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 either Borrower to take
proceedings against Prospective [assignee/Transferee/participant/Overdraft
Facility Transferee] in any other court of competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdiction preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
IN WITNESS WHEREOF, this confidentiality agreement has been executed as a deed
by the Prospective [assignee/Transferee/participant/Overdraft Facility
Transferee] delivered on the date specified below.
____________________________, 19____
EXECUTED AND DELIVERED AS A DEED
BY [INSERT NAME IN BLOCK CAPITALS
OF PROSPECTIVE ASSIGNEE/
TRANSFEREE/PARTICIPANT/OVERDRAFT
FACILITY TRANSFEREE]
Name: ___________________________
Title: __________________________
Name: ___________________________
Title: __________________________
B3:72735.1
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