L6,275,000
THIRD AMENDED AND RESTATED REVOLVING
CREDIT FACILITY AGREEMENT
DATED 31 JULY, 1997
between
PELIKAN SCOTLAND LIMITED
as borrower
BARCLAYS BANK PLC
as agent
NATIONSBANK OF TEXAS, N.A.
as collateral agent
NATIONSBANK OF TEXAS, N.A.
as documentation agent
and
OTHERS
THIS THIRD AMENDED AND RESTATED AGREEMENT is made the 31st day of July, 1997
BETWEEN:
(1) PELIKAN SCOTLAND LIMITED (the "BORROWER"):
(2) BARCLAYS BANK PLC, as agent (the "AGENT");
(3) NATIONSBANK OF TEXAS, N.A. as collateral agent (the "COLLATERAL AGENT",
the Agent and the Collateral Agent being hereinafter referred to
collectively as the "AGENTS");
(4) NATIONSBANK OF TEXAS, N.A. as documentation agent (the "DOCUMENTATION
AGENT");
(5) BARCLAYS BANK PLC as fronting bank (the "FRONTING BANK");
(6) BARCLAYS BANK PLC as overdraft provider (the "OVERDRAFT PROVIDER"); and
(7) THE FINANCIAL INSTITUTIONS named in the First Schedule (the "BANKS").
WHEREAS the parties hereto wish further to amend and restate the Amended and
Restated Agreement dated 15th October, 1996 (as so amended, the "ORIGINAL
AGREEMENT")
NOW IT IS HEREBY AGREED that the Original Agreement is hereby further amended
and restated as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ADVANCE" means, save as otherwise provided herein, an advance made
or to be made by a Lender pursuant to the terms hereof:
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of
exchange for the purchase of the relevant Optional Currency in the London
foreign exchange market with sterling at or about 11:00 a.m. on a
particular day;
"APPLICABLE MARGIN" means four percent (4%) per annum through June 30,
1998, and five percent (5%) per annum thereafter;
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, its Commitment at such time less (i) its
share of the Outstandings (other than any outstanding Short-Term Advance)
at such time (and for the purposes of determining a Bank's share of
Outstandings, such Bank's share will be the amount that it may become
obliged to pay to the Fronting Bank pursuant to Clause 8.6) and (ii) except
for the purposes of Clause 25, its share of any Advances which it is
obliged, or may become obliged, to make pursuant to Clause 6.5 in respect
of (a) any outstanding Short-Term Advances at close of business on the day
before the proposed Utilization Date and (b) any Short-Term Advance
requested to be made by no later than the Specified Time on such
Utilization Date;
"AVAILABLE FACILITY" means, at any time, the aggregate of the
Available Commitments at such time adjusted, in the case of a proposed
Utilization only, so as to take into account:
(i) any reduction in the Commitment of a Bank which will occur
prior to the commencement of, or during, the Term relating to the
proposed Utilization consequent upon a cancellation of the whole or
any part of the Commitment of such Bank pursuant to the terms hereof;
(ii) the amounts of any Advances (other than any Short-Term
Advances), Letters of Credit and/or Contract Guarantees which,
pursuant to any other Utilization, any Bank or the Fronting Bank as
the case may be are then obliged to make or, as the case may be, issue
on or before the proposed Utilization Date relating to such proposed
Utilization; and
(iii) the amounts of any Advances and/or Letters of Credit
which were made or, as the case may be, issued by any Bank, the
Overdraft Provider, or the Fronting Bank as the case may be, pursuant
hereto and which are due to be repaid or, as the case may be, expire
on or before the proposed Utilization Date relating to such
Utilization;
"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;
"CLOSING DATE" has the meaning given to it in the Credit Agreement;
"COLLATERAL DOCUMENTS" has the meaning given to it in the Credit
Agreement;
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name in the First
Schedule;
"COMMITMENT FEE" has the meaning given to it in Clause 25;
"COMMITMENT FEE PERCENTAGE" has the meaning given to it in the Credit
Agreement;
"CONTRACT GUARANTEES" means guarantees, indemnities, performance bonds
and similar undertakings issued or to be issued by the Fronting Bank
pursuant to Clause 7 (in each case in such form as may be requested by the
Borrower and acceptable to the Fronting Bank), in respect of the
obligations of the Borrower or its Subsidiaries, to any third party;
"CONTACT GUARANTEE OUTSTANDINGS" means at any time, the amount that is
the sum of (i) the maximum aggregate amount that is or at any time
thereafter may be payable by the Fronting Bank under each Contract
Guarantee outstanding at such time and (ii) the aggregate amount of all
claims honored by the Fronting Bank and not theretofore reimbursed by the
Borrower hereunder;
"CREDIT AGREEMENT" means the Third 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;
"DEBENTURE" means the Debenture dated 24th February, 1995, as
supplemented by Supplemental Debenture dated October 21, 1996, entered into
by the Company in favour of the Agent;
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"EVENT OF DEFAULT" means an "Event of Default" referred to in Section
5 of the Nu-kote Guarantees;
"EXPIRY DATE" means, in relation to any Letter of Credit or Contract
Guarantee, the date on which the maximum aggregate liability thereunder is
to be reduced to zero;
"FACILITY" means the revolving cash advances and letter of credit and
contract guarantee facility granted to the Borrower in this Agreement;
"FACILITY OFFICE" means, in relation to any of the Agent, the Fronting
Bank, the Overdraft Provider or the Banks, the office identified with its
signature below (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee, or in the case
of an Overdraft Facility Transferee, at the end of the Overdraft Provider
Transfer Certificate to which it is a party as the Overdraft Facility
Transferee) or such other office as it may from time to time select which
is located in the same jurisdiction as the office identified with its
signature below (or, in the case of a Transferee as the office identified
in the Transfer Certificate pursuant to which it became a party hereto, or
in the case of an Overdraft Facility Transferee, at the end of the
Overdraft Provider Transfer Certificate to which it is a party as the
Overdraft Facility Transferee) or, such other office as may be agreed
pursuant to Clause 17;
"FINANCE DOCUMENTS" means this Agreement, the Nu-kote Guarantees, the
Collateral Documents, the Debenture, the Hedging Documents and any other
document designated as such in writing by the Agent and the Borrower;
"GUARANTORS" means Nu-kote Holding, Inc., Nu-kote International, Inc.,
International Communication Materials, Inc., Future Graphics Inc., Nu-kote
Imaging International, Inc. and Nu-kote Imperial, Ltd. and
"GUARANTOR" means any one of them;
"HEDGING DOCUMENTS" means any and all currency or interest rate swap
and/or interest cap and/or other hedging agreements entered into or to be
entered into by the Borrower with a Bank in relation to the obligations of
the Borrower hereunder;
"L/C OUTSTANDINGS" means, at any time, the amount that is the sum of
(i) the maximum aggregate amount that is or at any time thereafter may
become available for drawings under each Letter of Credit outstanding at
such time and (ii) the aggregate amount of all drawings under each Letter
of Credit honored by the Fronting Bank and not theretofore reimbursed by
the Borrower hereunder;
"LENDERS" means the Banks and the Overdraft Provider;
"LETTER OF CREDIT" means a documentary or standby letter of credit
issued or to be issued by the Fronting Bank pursuant to Clause 7 in each
case, in such form as may be requested by a Borrower and which is
acceptable to the Fronting Bank;
"LIBOR" means, in relation to any Advance (other than a Short-Term
Advance) or unpaid sum, the rate per annum determined by the Agent to be
equal to the arithmetic mean (rounded upwards, if necessary, to four
decimal places) of the rates (as notified to the Agent) at which each of
the Reference Banks was offering to prime banks in the London Interbank
Market deposits in the currency of the relevant Advance and for the
specified period at or about 11:00 a.m. on the Quotation Date for such
specified period and, for the purposes of this definition, "SPECIFIED
PERIOD" means the Term of such Advance or, as the case may be, the
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relevant period in respect of which LIBOR falls to be determined in
relation to such unpaid sum;
"MANDATORY LIQUID ASSET COSTS RATE" means in relation to any Advance
or unpaid sum denominated in sterling, the rate determined in accordance
with the Sixth Schedule;
"NU-KOTE GUARANTEES" means the guarantees of 24th February, 1995 given
by the Guarantors in favour of the Agent for itself and on behalf of the
Lenders;
"OBLIGORS" means the Borrower and the Guarantors and "OBLIGOR" means
any one of them;
"OPTIONAL CURRENCY" means dollars, deutschmarks and Swiss francs;
"ORIGINAL STERLING AMOUNT" means:
(a) the principal amount (in the case of an Advance), or the
face value (in the case of a Letter of Credit or a Contract
Guarantee), of a Utilization denominated in sterling; or
(b) the principal amount (in the case of an Advance), or the
face value (in the case of a Letter of Credit or a Contract
Guarantee), of a Utilization denominated in an Optional Currency,
translated into sterling on the basis of the Agent's Spot Rate of
Exchange on the date of receipt by the Agent of the Utilization
Request for that Utilization.
"OUTSTANDINGS" means, at any time, the aggregate of:
(i) the principal amount of each outstanding Advance at such
time;
(ii) the L/C Outstandings at such times; and
(iii) the Contract Guarantee 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; 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 Seventh Schedule signed by the
Overdraft Provider and the Overdraft Facility Transferee whereby:
(i) the Overdraft Provider seeks to procure the transfer to the
Overdraft Facility Transferee of all (but not part) of the Overdraft
Provider's rights and obligations hereunder upon and subject to the
conditions set out in Clause 30.5; and
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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 Borrower and the Agent
as is contemplated in Clause 30.5;
"POTENTIAL EVENT OF DEFAULT" has the meaning given to it in the
Nu-kote Guarantees;
"PROPORTION" means, in relation to a Bank, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are then
zero, by its Commitment to the Total Commitments immediately prior to their
reduction to zero);
"QUALIFYING LENDER" means a person recognized as a bank as defined in
Section 840A of the Income and Corporation Taxes Act 1988 and which is
within the charge to U.K. corporation tax as regards any interest received
by it under this Agreement;
"QUOTATION DATE" means, in relation to any period for which an
interest rate is to be determined hereunder (other than a Short-Term
Advance), the day on which quotations would ordinarily be given by prime
banks in the London Interbank Market for deposits in the currency in
relation to which such rate is to be determined for delivery on the first
day of that period. Provided that, if for any such period quotations would
ordinarily be given on more than one date, the Quotation Date for that
period shall be the last of those dates;
"REFERENCE BANKS" means the principal London office of Barclays Bank
PLC or the principal offices of such other bank or banks as may from time
to time be agreed between the Borrower and the Agent acting on the
instructions of the Requisite Lenders;
"REPAYMENT DATE" means, in relation to any Advance, the last day of
the Term thereof;
"REQUISITE LENDERS" has the meaning given to it in the Credit
Agreement;
"REQUESTED AMOUNT" means, in relation to any Utilization Request, the
aggregate principal amount of the Advances or, as the case may be, face
amount of the Letter of Credit therein requested;
"SHORT-TERM ADVANCE" means any Advance denominated in sterling made by
the Overdraft Provider in that capacity pursuant to the terms hereof;
"SWISS FACILITY" means the Third Amended and Restated Revolving Credit
and Letter of Credit Facility of even date hereof made available to Pelikan
Produktions AG and Pelikan Hardcopy (International) AG by Barclays Bank
PLC, NationsBank of Texas, N.A. and others;
"SUBSIDIARY" has the meaning given to it in the Credit Agreement;
"TERM" means, save as otherwise provided herein, in relation to any
Advance, the period for which such Advance is borrowed (as specified in the
Utilization Request relating thereto) and, in relation to any Letter of
Credit or Contract Guarantee, the period from the date on which such Letter
of Credit or Contract Guarantee (as the case may be) is issued until its
Expiry Date (as specified in the Utilization Request relating thereto);
"TERMINATION DATE" means January 4, 1999, or such earlier date on
which the
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Revolving Credit Commitments, under and as defined in the Credit Agreement,
shall terminate;
"TOTAL COMMITMENTS" means the aggregate for the time being of the
Banks' Commitments;
"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in the Second Schedule signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee
of all or a part of such Bank's rights and obligations hereunder upon
and subject to the terms and conditions set out in Clause 30; and
(ii) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to the
Borrower and the Agent as is contemplated in Clause 30;
"TRANSFER DATE" means, in relation to any Transfer Certificate or
Overdraft Provider Transfer Certificate, the date for the making of the
transfer as specified in the schedule to such Transfer Certificate or
Overdraft Provider Transfer Certificate, as the case may be;
"TRANSFEREE" means a bank or other financial institution to which a
Bank transfers all or part of such Bank's rights and obligations hereunder
in accordance with Clause 30;
"UTILIZATION" means a utilization of the Facility hereunder;
"UTILIZATION DATE" means the date of a Utilization, being the date on
which the Advances in respect thereof are to be made or the Letter of
Credit or, as the case may be, Contract Guarantee in respect thereof is to
be issued; and
"UTILIZATION REQUEST" means a notice given to the Agent pursuant to
Clause 6.1 substantially in the form set out in the Fourth Schedule.
1.2 Any reference in this Agreement to:
an "AFFILIATE" of the Agent shall be construed as a reference to a
subsidiary or holding company, or to a subsidiary of a holding company, of
the Agent;
the "AGENT", the "COLLATERAL AGENT" or any "LENDER" or any "OVERDRAFT
PROVIDER" shall be construed so as to include its and any subsequent
successors, Transferees 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 (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
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no numerically corresponding day in the month in which that period ends,
that period shall end on the last business day in that later month (and
references to "MONTHS" shall be construed accordingly);
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same); and
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time.
1.3 "L" and "STERLING" denote the lawful currency of the United Kingdom,
"US$" and "DOLLARS" denote the lawful currency of the United States of America,
"DM" and "DEUTSCHMARKS" denote the lawful currency of the Federal Republic of
Germany and "CHF" and "SWISS FRANCS" denote the lawful currency of Switzerland.
1.4 Save where the contrary is indicated, any reference in this Agreement
to:
(i) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be, such
other agreement or document as the same may have been, or may from time to
time be, amended, restated, varied, novated or supplemented; and
(ii) a time of day shall be construed as a reference to London time.
1.5 There are set out in the Fifth Schedule timetables of certain of the
procedures provided for in this Agreement. For the purpose of construction, any
reference herein to a specified time shall be construed as a reference to the
relevant time set forth in the relevant timetable.
2. THE FACILITY
2.1 The Lenders grant to the Borrower, upon the terms and subject to the
conditions hereof, a revolving cash advance, letter of credit and contract
guarantee facility in an aggregate Original Sterling Amount of L6,275,000.
2.2 Subject to Clause 2.1 above, the aggregate amount of all Utilizations
denominated in an Optional Currency outstanding at any time shall not:
(i) in the case of Utilizations denominated in dollars, exceed
US$10,000,000;
(ii) in the case of Utilizations denominated in deutschmarks, exceed
DM2,666,310; and
(iii) in the case of Utilizations denominated in Swiss francs,
exceed CHF3,260,741.
2.3 Notwithstanding Clause 2.2 above, that part of the Facility available
for Utilization by way of Letters of Credit is limited to an Original Sterling
Amount of L3,000,000.
2.4 That part of the Facility available for Utilization by way of
Short-Term Advances is limited to L1,882,000.
2.5 Notwithstanding Clause 2.2 above, that part of the Facility available
for utilization by
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way of Contract Guarantees is limited to an Original Sterling Amount of
Ll,000,000.
3. PURPOSE
3.1 The Facility is intended to be used for general corporate purposes
including, but not limited to:
(i) working capital;
(ii) capital and other expenditures and expenses;
(iii) the issue of Letters of Credit,
(iv) the issue of Contract Guarantees in relation to liabilities of
the Borrower or the Borrower's Subsidiaries, to third parties; and
(v) refinancing existing indebtedness and other indebtedness,
including reimbursement to the Fronting Bank of any amounts drawn under any
Letters of Credit or paid under any Contract Guarantees,
and, accordingly, the Borrower shall apply all amounts raised by it
hereunder in or towards satisfaction of such purposes.
3.2 APPLICATION OF AMOUNTS
Without prejudice to the obligations of the Borrower under Clause 3.1, the
Agents and the Lenders shall not be obliged to concern themselves with the
application of amounts raised by the Borrower hereunder.
4. CONDITIONS PRECEDENT
The Borrower may not utilize the Facility unless the Agent has confirmed to
the Borrower and the Lenders that it has received all of the documents listed in
the Third Schedule and that each is, in form and substance, satisfactory to the
Agent.
5. NATURE OF LENDERS' OBLIGATIONS
5.1 The obligations of each Lender hereunder are several.
5.2 The failure by a Lender to perform its obligations hereunder shall not
affect the obligations of any other Lender or the Borrower towards any other
party hereto nor shall any other party be liable for the failure by such Lender
to perform its obligations hereunder.
6. UTILIZATION OF THE FACILITY
6.1 Save as otherwise provided herein, Advances will be made by the Banks
or, as the case may be, a Letter of Credit or Contract Guarantee will be issued
by the Fronting Bank or, as the case may be, Short-Term Advances will be made by
the Overdraft Provider to the Borrower if:
(i) no later than the specified time in respect of the proposed
Utilization, the Agent or, in the case of a Short-Term Advance, the
Overdraft Provider, has received from the Borrower a Utilization Request
therefor;
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(ii) the proposed Utilization Date in respect of such Utilization
Request is a business day;
(iii) the Requested Amount is:
(a) in the case of a Utilization by means of Advances (other
than Short-Term Advances), an amount which does not exceed the
Available Facility at such time and which, if less than the Available
Facility at such time:
(1) if no other Advance (other than a Short-Term Advance)
of an Original Sterling Amount of less than L1,000,000 is
outstanding at such time is:
(A) if the currency is sterling, a minimum amount of
L500,000 and in additional integral multiples of Ll,000,000;
or
(B) if the currency is an Optional Currency, a minimum
Original Sterling Amount of L500,000 (or an appropriate
amount thereof) and in additional integral multiples of an
Original Sterling Amount of L1,000,000 (or an approximate
amount thereof); or
(2) if an Advance (other than a Short-Term Advance) of less
than an Original Sterling Amount of L1,000,000 is outstanding at
such time is:
(A) if the currency is sterling, a minimum amount of
L1,000,000 and in additional integral multiples of L500,000;
or
(B) if the currency is an Optional Currency, a minimum
Original Sterling Amount of L1,000,000 (or an approximate
amount thereof) and in additional integral multiples of an
Original Sterling Amount of L500,000 (or an approximate
amount thereof); or
(b) in the case of a Utilization by means of a Letter of Credit,
an amount which does not exceed the Available Facility at such time
and which when aggregated with the L/C Outstanding at the time of such
Utilization does not exceed an Original Sterling Amount of L3,000,000;
or
(c) in the case of a Utilization by means of Short-Term
Advances, an amount which does not exceed the Available Facility at
such time and which when aggregated with all other Short-Term Advances
then outstanding, does not exceed L1,882,000;
(iv) in the case of a Utilization to be denominated in an Optional
Currency, its principal amount (in the case of an Advance) or its face
value (in the case of a Letter of Credit or a Contract Guarantee), when
aggregated with the aggregate principal amounts and/or the aggregate face
values, as the case may be, of all outstanding Utilizations denominated in
the same Optional Currency, would not exceed the limits set out in
Clause 2.2; and
(v) the Term requested by the Borrower in such Utilization Request
will end on a business day which is or precedes the Termination Date and
which in respect of Advances will be:
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(a) in respect of any Advance (other than a Short-Term
Advance) with a proposed Utilization Date falling during the period
expiring on the date that is two (2) months after the Closing Date,
a period not exceeding 14 days;
(b) in respect of an Advance (other than a Short-Term Advance)
to which Clause 6.1(v)(a) does not apply, a period of one, three or
six months;
(c) in respect of a Letter of Credit or Contract Guarantee:
(1) if denominated in sterling, any period of 18 months
or less; or
(2) if denominated in an Optional Currency, any period of
twelve months or less;
(d) in respect of a Short-Term Advance, any period of one
month or less; and
(vi) the making of such Advance (other than a Short-Term Advance)
will not result in there being more than 5 outstanding Advances (other
than Short-Term Advances).
6.2 If and whenever, on the occasion of a Utilization, the Banks are
required to make Advances or the Fronting Bank is required to issue a Letter
of Credit or Contract Guarantee pursuant hereto, the aggregate principal
amount of the Advances to be so made or, as the case may be, the face amount
of the Letter of Credit or Contract Guarantee (as the case may be) to be so
issued shall be allocated to, and apportioned among, the Banks rateably to
their respective Available Commitments for such Utilization. Provided that no
amount shall be allocated to any Bank in respect of any Utilization if such
Bank's Commitments will be cancelled pursuant to the terms hereof prior to or
during the Term of the proposed Advances or the term of the proposed Letter of
Credit or Contract Guarantee (as the case may be).
6.3 Each Lender shall, subject to the terms hereof, be obliged, through
its Facility Office, to make an Advance on the proposed Utilization Date in a
principal amount equal to the amount allocated to, or in the case of a
Short-Term Advance, requested from it pursuant to this Clause 6.
6.4 The Agent shall not later than the specified time notify each Bank
by telephone of the principal amount or, as the case may be, the amount
allocated to it pursuant to this Clause 6, such notice to be promptly
confirmed by the Agent by telex or telefax.
6.5 The Overdraft Provider may request by notice to the Borrower
(through the Agent) at any time when the Borrower has an outstanding
Short-Term Advance made by such Overdraft Provider that the Banks make an
Advance to the Borrower on a business day specified by the Overdraft Provider
in such notice (such date falling no earlier than five business days after
receipt of such notice) and upon receiving such notice the Borrower shall,
unless such outstanding Short-Term Advance has been repaid within three
business days of receipt of such notice, be deemed to have served a
Utilization Request for an Advance to be made by the Banks in an amount equal
to, and in the same currency as, such outstanding Short-Term Advance on such
business date specified by the Overdraft Provider for a Term of one month
whereupon, notwithstanding the provisions of Clause 6.1(iii) or (v) or the
conditions to making an Advance contained in Clause 10 or any cancellation of
the Available Facility following the making of such Short-Term Advance, the
Banks shall make such Advance available to the Borrower rateably to their
respective Available Commitments at such time (or immediately prior to any
such cancellation) and interest on such Advance shall be determined in
accordance with Clause 11.2 and the Agent is hereby authorized to pay the
proceeds of such Advance
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to the Overdraft Provider on behalf of the Borrower to be applied in discharge
of such outstanding Short-Term Advance.
6.6 For the avoidance of any doubt, since the definition of Commitment
only applies to Banks and not the Overdraft Provider or the Fronting Bank, any
Bank that is also an Overdraft Provider or Fronting Bank may be obliged to
have Outstandings that, including its Advances as a Bank, its Short-Term
Advances as Overdraft Provider and its L/C Outstandings and Contract Guarantee
Outstandings as Fronting Bank, exceed the amount of its Commitment and any
such Bank, in its capacity as Overdraft Provider and Fronting Bank, has the
benefit of the Banks' obligations under Clauses 6.5 and 8.6 in respect of its
Short Term Advances and L/C Outstandings and Contract Guarantee Outstandings
as Fronting Bank.
7. ISSUE OF LETTERS OF CREDIT AND CONTRACT GUARANTEES
7.1 Each Utilization Request in respect of a Letter of Credit or
Contract Guarantee shall, in addition to the information required pursuant to
Clause 6.1, specify the name and address of the recipient to which the
relevant Letter of Credit or Contract Guarantee (as the case may be) should be
delivered and shall have the proposed form of the Letter of Credit or Contract
Guarantee (as the case may be) attached to it.
7.2 Subject to the provisions hereof, the Fronting Bank shall issue a
Letter of Credit or Contract Guarantee in accordance with Clause 7.1 if:
(i) no Event of Default or Potential Event of Default has occurred
which is continuing;
(ii) the representations and warranties set out in Section 3 of the
Nu-kote Guarantees are true in all material respects on and as of such
Utilization Date to the same extent as though made on and as of such
Utilization Date, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case, such
representations and warranties shall have been true and correct in all
material respects as of such earlier date; and
(iii) the form of the Letter of Credit or Contract Guarantee (as
the case may be) has been agreed between the Borrower with the Fronting
Bank by no later than the specified time.
8. INDEMNITY (INCLUDING BANK INDEMNITY FOR SHORT-TERM ADVANCES)
8.1 If, at any time, a demand for payment (the amount so demanded being
herein referred to as the "AMOUNT DEMANDED") is made under a Letter of Credit
or Contract Guarantee (as the case may be) by the beneficiary thereof, the
Agent shall notify the Borrower of such demand and make demand of the Borrower
for an amount equal to the Amount Demanded.
8.2 The Borrower shall pay to the Agent an amount equal to the Amount
Demanded following receipt by it of a demand made on it by the Agent under
this Clause 8. Such payment shall be made on the business day during which the
Borrower receives such demand from the Agent, or, in the event that the
Borrower receives such demand after 9:00 a.m. on such business day, on the
business day following.
8.3 The Borrower hereby irrevocably and unconditionally agrees to
indemnify and keep indemnified the Fronting Bank against each and every sum
paid or payable by the Fronting Bank under
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any Letter of Credit or Contract Guarantee issued at its request and also
undertakes to indemnify and hold harmless the Fronting Bank on demand from and
against all actions, proceedings, liabilities, costs (including, without
limitation, any costs incurred in funding any amount which falls due from the
Fronting Bank under any Letter of Credit or Contract Guarantee (as the case
may be) in connection with any such Letter of Credit or Contract Guarantee (as
the case may be) as certified by the Fronting Bank to the Borrower), claims,
losses, damages and expenses which the Fronting Bank may at any time incur or
sustain in connection with or arising out of any Letter of Credit or Contract
Guarantee (as the case may be) issued at its request. Provided that the
Borrower shall not be obliged to pay any amount under this Clause 8.3 to the
extent that such obligation has arisen as a result of (i) the fraud, gross
negligence or wilful misconduct of the Fronting Bank or (ii) the failure by
the Fronting Bank to use reasonable care to determine that any documents and
certificates required to be delivered under any Letter of Credit or Contract
Guarantee (as the case may be) have been delivered and that they comply on
their face with the requirements of that Letter of Credit or Contract
Guarantee (as the case may be) before making any payment thereunder.
8.4 The Fronting Bank shall be entitled to make any payment under any
Letter of Credit or Contract Guarantee (as the case may be) for which a demand
has been made without any reference to or further authority from the Borrower
at whose request such Letter of Credit or Contract Guarantee (as the case may
be) was issued or any other investigation or enquiry, need not concern itself
with the propriety of any demand made or purported to be made under and in the
manner required by the terms of any such Letter of Credit or Contract
Guarantee (as the case may be) and shall be entitled to assume that any person
expressed in any Letter of Credit or Contract Guarantee (as the case may be)
or in any notice served pursuant to any such Letter of Credit or Contract
Guarantee (as the case may be) to be entitled to make demands is so entitled
and that any individual purporting to sign any such demand or notice on behalf
of such person is duly authorized to do so unless it has actual knowledge that
such person is not so entitled or not so authorized. Accordingly, it shall
not (save as provided in this Clause 8) be a defense to any demand made of the
Borrower, nor shall the Borrower's obligations hereunder be impaired by the
fact (if it be the case), that the Fronting Bank was or might have been
justified in refusing payment, in whole or in part, of the amounts so
demanded. Provided that the Fronting Bank shall use reasonable care to
determine that any documents and certificates required to be delivered under
any Letter of Credit or Contract Guarantee (as the case may be) have been
delivered and that they comply on their face with the requirements of that
Letter of Credit or Contract Guarantee (as the case may be) before making any
payment thereunder.
8.5 Save as otherwise provided in this Clause 8, the obligations of the
Borrower to the Fronting Bank in connection with any such Letter of Credit or
Contract Guarantee (as the case may be) shall not be discharged, lessened or
impaired by any act, omission or circumstance whatsoever which, but for this
provision, might operate to release or exonerate the Borrower from all or part
of such obligations or in any other way discharge, lessen or impair the same.
8.6 Each Bank hereby irrevocably and unconditionally agrees to indemnify
and keep indemnified the Fronting Bank and the Overdraft Provider on demand
and in its Proportion against each and every sum payable hereunder by the
Borrower to the Fronting Bank and the Overdraft Provider in respect of a
Letter of Credit or Contract Guarantee (as the case may be) or Short-Term
Advance but which is not paid on the due date therefor.
9. LETTER OF CREDIT AND CONTRACT GUARANTEE COMMISSIONS AND FEES
9.1 The Borrower agrees to pay the following amounts with respect to
each Letter of Credit issued by the Fronting Bank hereunder at its request:
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(i) in respect of each documentary Letter of Credit with a term (on
issue thereof) of less than one year, a commission of 0.625 percent per
annum on the weighted average maximum amount available from time to time
to be drawn under such Letter of Credit. Such commission shall be paid
to the Agent for the account of each Bank and for distribution by the
Agent to each Bank in proportion to each Bank's allocation pursuant to
Clause 6.2 in arrear on and to (but excluding) each 31st March, 30th
June, 30th September and 31st December in each year during the term
thereof and on the Expiry Date thereof, the first such payment to be made
on 31st March, 1995 in respect of any documentary Letter of Credit issued
prior to such date;
(ii) in respect of each documentary Letter of Credit with a term (on
issue thereof) of one year or more and each Standby Letter of Credit, a
commission equal to the product of (A) the weighted average Applicable
Margin applicable to the Advances (other than Short-Term Advances)
outstanding hereunder during the period of calculation multiplied by (B)
the weighted average maximum amount available from time to time to be
drawn during such period under such Letter of Credit. Such commission
shall be paid to the Agent for the account of each Bank and for
distribution by the Agent to each Bank in proportion to each Bank's
allocation pursuant to Clause 6.2 in arrear on and to (but excluding)
each 31st March, 30th June, 30th September and 31st December in each year
during the term thereof and on the Expiry Date thereof, the first such
payment to be made on 31st March, 1995;
(iii) a fronting fee, for the account of the Fronting Bank, of
0.20 percent per annum on the face amount of such Letter of Credit in
arrear on and to (but excluding) each 31st March, 30th June, 30th
September and 31st December in each year during the term thereof and on
the Expiry Date thereof, the first such payment to be made on 31st March,
1995 in respect of any such Letter of Credit issued prior to such date;
and
(iv) with respect to the issuance, any amendment and any transfer
thereof and each drawing thereunder, in each case reasonable documentary
and processing charges in accordance with the Fronting Bank's standard
schedule for such charges in effect at the date of issue or the relevant
amendment, transfer or drawing (as the case may be) of the relevant
Letter of Credit.
9.2 In respect of each Contract Guarantee, a commission equal to the
higher of L100 and 0.75% per annum on the weighted average maximum amount
available from time to time to be paid under such Contract Guarantee. An
amount of such commission equal to 0.55% per annum on the weighted average
maximum amount available from time to time to be paid under such Contract
Guarantee shall be paid to the Agent for the account of each Bank for
distribution by the Agent to each Bank in proportion to each Banks allocation
pursuant to Clause 6.2 in arrear on and to (but excluding) each 31st March,
30th June, 30th September and 31st December in each year during the term
thereof and on the Expiry Date thereof, the first such payment to be made on
30th June, 1995 in respect of any Contract Guarantee issued prior to such
date. The balance of such commission shall be paid to the Fronting Bank for
its own account in arrear on and to (but excluding) each 31st March, 30th
June, 30th September and 31st December in each year during the term of such
Contract Guarantee and on the Expiry Date thereof, the first such payment to
be made on 30th June, 1995 in respect of any such Contract Guarantee issued
prior to such date.
10. MAKING OF ADVANCES
10.1 If the Agent notifies any Bank or the Overdraft Provider (as the
case may be) in accordance with Clause 6 that it is to make any Advance, and
if on the proposed Utilization Date relating to such an Advance:
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(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
Utilization Date to the same extent as though made on and as of such
Utilization Date, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case, such
representations and warranties shall have been true and correct in all
material respects as of such earlier date,
then, on such Utilization Date, such Bank or the Overdraft Provider (as
the case may be) shall, save as otherwise provided herein, make such
Advance through its Facility Office to the Borrower in accordance with
the provisions of Clause 22. Advances made hereunder shall not be
represented by notes or other instruments evidencing indebtedness.
10.2 If, before 9:00 a.m. on the Utilization Date of an Advance to be
denominated in an Optional Currency, the Agent receives notice from a Lender
that:
(i) it is impracticable for the affected lender to fund its
participation in such Advance for its Term in that Optional Currency in
the ordinary course of business in the London interbank market; or
(ii) the use of the proposed Optional Currency might contravene any
law or regulation relevant to the affected Lender;
then:
(a) the Agent shall promptly and in any event before 10:00
a.m. on that Utilization Date notify the Borrower;
(b) if the Agent receives notice from the Borrower by 11:00
a.m. on the relevant Utilization Date, that Advance shall not be
made; and
(c) if the Agent does not receive any notice under
sub-paragraph (b) above, then that Advance shall be denominated in
sterling in an amount equal to its Original Sterling Amount.
10.3 The Agent shall notify each relevant Party of any applicable Agent's
Spot Rate of Exchange or Original Sterling Amount as soon as practicable after
it is ascertained.
11. INTEREST
11.1 On the last business day of each month and on the Repayment Date
relating to each Advance made to it the Borrower shall pay accrued interest on
that Advance.
11.2 The rate of interest applicable to an Advance (other than a
Short-Term Advance) made by a Bank during the Term of such Advance shall be
the rate per annum determined by the Agent to be the sum of:
(i) LIBOR on the Quotation Date for such Advance,
(ii) the Applicable Margin; and
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(iii) (in the case of an Advance denominated in sterling) the
Mandatory Liquid Asset Costs Rate in respect thereof.
11.3 The rate of interest applicable to a Short Term Advance shall be the
rate per annum determined by the Agent to be the sum of:
(i) the base rate of the Overdraft Provider; and
(ii) the higher of (a) the Applicable Margin and (b) one percent.
11.4 The Agent shall promptly notify the Borrower and the relevant Banks
of each determination of an interest rate made by it pursuant to this Clause
11.
12. REPAYMENT OF ADVANCES
12.1 The Borrower shall repay each Advance made to it in full on (or, in
the case of a Short-Term Advance, if such Borrower so elects, before) the
Repayment Date relating thereto.
12.2 The Borrower shall not repay all or any part of any Advance
outstanding hereunder except at the times and in the manner expressly provided
herein.
13. CANCELLATION
13.1 The Borrower may, by giving to the Agent not less than three
business days' prior notice to that effect, cancel the whole or any part
(being a minimum amount of L1,300,000 and in additional integral multiples of
L1,000,000) of the Available Facility. Any such cancellation shall reduce the
Commitment of each Bank rateably.
13.2 Any notice of cancellation given by the Borrower pursuant to Clause
13.1 shall be irrevocable and shall specify the date upon which such
cancellation is to be made and the amount of such cancellation.
13.3 If (i) the Borrower is required to make any additional payment to a
Lender pursuant to Clauses 14 or 18.2 or (ii) any Lender claims
indemnification under Clauses 15.1 or 15.2, the Borrower may, within thirty
days thereafter and by not less than fifteen days' prior notice to the Agent
(which notice shall be irrevocable), cancel all or any part of such Lender's
Commitment whereupon on the date specified in such notice its Commitment shall
be reduced by the amount so cancelled.
13.4 If the Borrower gives notice of cancellation pursuant to Clause
13.3, it may at the same time as such notice expires repay each outstanding
Advance (or, as the case may be, the relevant proportion thereof) of the
relevant Lender together with accrued interest thereon and may procure that
such Lender's liability under all outstanding Letters of Credit and Contract
Guarantees (or, as the case may be and in each case, the relevant proportion
thereof) will be secured in a manner acceptable to such Lender, it being
understood that in no event shall any Letter of Credit or Contract Guarantee
or the obligations of the Fronting Bank thereunder be cancelled, and security
equal to, and in the same currency as, the maximum amount that can be drawn
under each outstanding Letter of Credit and Contract Guarantee issued by the
Fronting Bank shall be acceptable to the Fronting Bank.
13.5 If on or after July 31, 1997, Nu-kote International, Inc. gives
notice in accordance with the Credit Agreement to cancel the whole or any part
of a Bank's commitment under the Credit Agreement, the Borrower shall, at the
same time, give notice in accordance with Clause 13.1 to cancel
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the whole or a proportion equal to the proportion to be cancelled under the
Credit Agreement, of such Bank's Commitment hereunder. If the Borrower fails
to give such a notice in accordance with Clause 13.1, the notice given in
accordance with the Credit Agreement shall be deemed to be a notice under
Clause 13.1, MUTATIS MUTANDIS. Requisite Lenders hereby waive compliance with
this Section 13.5 with respect to reductions occurring on the Closing Date.
14. TAXES
14.1 All payments to be made by the Borrower to the Agent, any Lender or
the Fronting Bank hereunder shall be made free and clear of and without
deduction for or on account of tax unless the Borrower is required to make
such a payment subject to the deduction or withholding of tax, in which case
the Borrower shall promptly upon becoming aware thereof notify the Agent
thereof and the Borrower shall pay to the relevant taxing or other
governmental authority the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any
additional amount paid by the Borrower pursuant to the succeeding sentence)
promptly upon becoming aware of the same. If such deduction or withholding is
required, the sum payable by the Borrower in respect of which such deduction
or withholding is required to be made shall be increased to the extent
necessary to ensure that, after the making of the required deduction or
withholding, the Agent, such Lender or, as the case may be, the Fronting Bank
receives and retains (free from any liability in respect of any such deduction
or withholding) a net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or required to be
made. Provided that the Borrower shall not be required to make any additional
payment to any Lender pursuant to this Clause 14.1 if:
(i) the law, regulation or other administrative circular requiring
such deduction or withholding was in existence on 24th February, 1995;
(ii) the requirement to deduct or withhold arises as a result of
such Lender not being at the time it becomes a party to this Agreement or
having ceased to be a Qualifying Lender;
(iii) the requirement to deduct or withhold could have been avoided
or reduced as a result of such Lender complying with any obligation it
may have to provide documentation in accordance with Clause 17.1; or
(iv) the requirement to deduct or withhold would not have arisen but
for a transfer or assignment or participation in breach of Clause 30.
14.2 If a Lender shall become aware that it is eligible for a refund in
respect of any taxes actually paid by the Borrower pursuant to Clause 14.1
hereof, it shall promptly notify the Borrower of the availability of such
refund and shall, within 30 days after receipt of a request by the Borrower,
apply for such refund or shall furnish to the Borrower such forms, duly
completed, as will enable the Borrower to claim such refund on its own behalf.
The Borrower shall reimburse such Lender for all costs reasonably incurred by
it in applying for and seeking such refund. If any Lender determines that it
has received a refund in respect of any taxes paid by the Borrower pursuant to
Clause 14.1 hereof, it shall repay such refund within 30 days after receipt to
the Borrower to the extent of amounts not in excess of the amounts actually
paid by the Borrower and not previously reimbursed in respect of the taxes
giving rise to such refund net of all out-of-pocket expenses reasonably
incurred by such Lender not previously reimbursed and without interest (other
than interest received from the relevant taxing authority with respect to such
refund). The Borrower, upon request of the relevant Lender, agrees to return
to such Lender the amount paid to it by the applicable Lender with respect to
such refund (plus applicable penalties, interest or other charges) in the
event that such Lender is required to repay such
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refund. In addition the Agent and each Lender shall reasonably cooperate with
the Borrower, at the Borrower's expense, in contesting any taxes that the
Borrower is required to bear pursuant to Clause 14.1 hereof and shall pay to
the Borrower, on a net after tax basis, any refunds obtained as a result of
such contest, together with any interest thereon, within 30 days of receipt.
Nothing in this Clause 14.2 shall interfere with the right of any person to
arrange its tax affairs in whatever manner it thinks fit nor oblige any person
to disclose any information relating to its tax affairs or any computations in
respect thereof to any other person.
15. INCREASED COSTS
15.1 If, after 24th February, 1995 by reason of, (i) the introduction of
or any change (including, without limitation, any change by way of imposition
or increase of tax or reserve requirements) in or in the official
interpretation of any law or regulation by the authority charged with the
administration or interpretation thereof, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law) but being a
guideline or request with which banks are generally accustomed to comply:
(i) a Lender incurs a cost as a result of such Lender's having
entered into and/or performing its obligations under this Agreement
and/or assuming or maintaining a commitment under this Agreement and/or
participating in one or more Advances, or Letters of Credit and/or one or
more Contract Guarantees hereunder;
(ii) there is an increase in the cost to a Lender of funding or
maintaining its participation in (a) all or any of the advances comprised
in a class of advances formed by or including the Advances made or to be
made hereunder, (b) all or any of the letters of credit comprised in a
class of letters of credit formed by or including the Letters of Credit
made or to be made hereunder and/or (c) all or any of the contract
guarantees comprised in a class of contract guarantees formed by or
including the Contract Guarantee issued or to be issued hereunder; or
(iii) a Lender becomes liable to make any payment on account of tax
or otherwise (not being a tax imposed on or measured by the net income or
capital of such Lender by the jurisdiction in which it is incorporated or
in which it or its Facility Office is located or centrally managed or
controlled) on or calculated by reference to the amount of such Lender's
participation in the Advances made or to be made hereunder and/or any
Letter of Credit issued or to be issued hereunder and/or any Contract
Guarantee issued or to be issued hereunder and/or to any sum received or
receivable by it hereunder,
then the relevant Lender shall, through the Agent, notify the Borrower of such
cost, such increased cost or, as the case may be, such liability within 30
days of becoming aware of the same, demanding indemnification in respect
thereof and upon receipt of such notice and demand, the Borrower shall pay to
the Agent for the account of that Lender, within five business days after
receipt of such notice and demand, additional amounts sufficient to indemnify
that Lender against such cost, increased cost or such liability. A
certificate in reasonable detail as to the amount of such cost, increased cost
or such liability submitted to the Borrower and the Agent by that Lender,
shall, except for manifest error, be final, conclusive and binding for all
purposes.
15.2 In the event that any Lender shall have reasonably determined that
the adoption or implementation after 24th February, 1995 of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy (other than (i) the terms, proposals and
recommendations contained in the Basle Paper or (ii) any other rule,
regulation, guideline or order
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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 of 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 the Borrower of such event within 30
days of becoming aware of the same demanding indemnification in respect
thereof and including in such notification and demand a certificate stating
(a) that one of the events described in this Clause 15.2 has occurred and
describing in reasonable detail the nature of such event, (b) the amount of
the reduction in the rate of return on such Lender's capital reasonably
determined by such Lender to be allocable to the existence of such Lender's
obligations hereunder and (c) setting forth in reasonable detail the manner of
calculation of the reduction in the rate of return on such Lender's capital
and such allocated amount thereof and the Borrower shall upon receipt of such
notice and demand pay to the Agent, for the account of such Lender, additional
amounts sufficient to compensate such Lender for such reduction. A
certificate as to the amount of such compensation, submitted to the Borrower
and the Agent by such Lender shall, in the absence of manifest error, be
final, conclusive and binding for all purposes. In determining such amount, a
Lender may use any reasonable averaging and attribution method. Nothing in
this Clause 15.2 is intended to provide to the Borrower the right to inspect
the records, files or books of any Lender.
15.3 The Borrower shall not be required to pay any amounts pursuant to
Clauses 15.1 or 15.2:
(i) to the extent that such amounts are recovered under Clause 14,
Clause 18 or any other sub-clause of Clause 15;
(ii) to the extent that such cost, increased cost or liability would
not have arisen but for a transfer or assignment in breach of Clause 30;
(iii) unless the relevant Lender has delivered a notice and demand in
the manner required by Clause 15.1 or, as the case may be, Clause 15.2
and such certificates as are referred to in Clauses 15.1 or, as the case
may be, 15.2; or
(iv) to the extent that such cost, increased cost or liability has
already been compensated for by application of the Mandatory Liquid Asset
Costs Rate.
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16. ILLEGALITY
If, at any time after 24th February, 1995 it is unlawful for a Lender to
make, fund or allow to remain outstanding all or any of the Advances made or
to be made by it hereunder and/or all or any of the Letters of Credit or
Contract Guarantees issued or to be issued by it hereunder then that Lender
shall, promptly after becoming aware of the same, deliver to the Borrower
through the Agent a certificate to that effect and, unless such illegality is
avoided in accordance with) Clause 17 taking into account any grace period
allowed by any such order, request or requirement:
(i) such Lender shall not thereafter be obliged to make any Advances
or issue any letters of Credit or Contract Guarantees (as the case may be)
and the amount of its Commitment shall be immediately reduced to zero; and
(ii) if the Agent on behalf of such Lender so requires, the Borrower
shall on such date as the Agent shall have specified:
(a) repay each outstanding Advance together with accrued
interest thereon and all other amounts owing to such Lender; and/or
(b) procure that such Lender's obligations under any Letters of
Credit or Contract Guarantees (as the case may be) will be secured in
a manner acceptable to such Lender, it being understood that in no
event shall any Letter of Credit or Contract Guarantees (as the case
may be) or the obligations of the Fronting Bank thereunder be
cancelled, and security in sterling equal to the maximum amount that
can be drawn under each Letter of Credit or paid under each Contract
Guarantee (as the case may be) outstanding at such time shall be
acceptable to the Fronting Bank.
17. MITIGATION
17.1 If, in respect of any Lender, circumstances arise which would or
would upon the giving of notice result in:
(i) the reduction of its Commitment to zero pursuant to Clause 16(i);
(ii) an increase in the amount of any payment to be made to it or for
its account pursuant to Clause 14 or Clause 18.2; or
(iii) a claim for indemnification pursuant to Clause 15.1 or 15.2,
then, without in any way limiting, reducing, or otherwise qualifying the
rights of such Lender or the obligations of the Borrower under any of the
Clauses referred to in (i), (ii) or (iii) above such Lender shall promptly
upon becoming aware of the same notify the Agent thereof and, in consultation
with the Agent and the Borrower to the extent that it can do so without
prejudice to its own position, take such steps as it determines are available
to it (acting reasonably) to mitigate the effects of such circumstances at
the request and expense of the Borrower including (i) the transfer of its
Facility Office (ii) (subject to Clause 30) the transfer of its rights and
obligations hereunder to another financial institution acceptable to the
Borrower and willing to participate in the Facility and/or (iii) within 30
days of becoming aware of the same, the execution and delivery to the
relevant authorities (and/or the Borrower) of any documentation necessary to
secure the benefit of any applicable double taxation treaty or any relevant
domestic law which would operate to mitigate any of the circumstances
referred to above. Provided that such Lender shall be under no obligation to
take any such action if, in the reasonable opinion of
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such Lender, to do so might have any adverse effect upon its business,
operations or financial condition.
17.2 The Borrower hereby agrees to pay all expenses reasonably incurred
by any Lender in taking steps to mitigate the effects of circumstances giving
rise to any of the matters referred to in Clause 17.1(i), (ii) and (iii) by
transferring its Facility Office pursuant to Clause 17.1 to the extent that
such expenses would not have occurred but for such transfer.
18. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
18.1 If, in relation to any Utilization by way of Advances (other than a
Short-Term Advance), the Agent determines that at or about 11:00 a.m. on the
Quotation Date for the Term in respect of such Advances none of the Reference
Banks was offering to prime banks in the London Interbank Market deposits in
the relevant currency for the proposed duration of such Term, then,
notwithstanding such failure to offer deposits in that currency:
(i) the Agent shall notify the other parties hereto of such event;
(ii) such Advances shall, nevertheless, be made and the amount of
interest payable in respect of any such Advance during its Term shall be
determined in accordance with the following provisions of this Clause 18;
and
(iii) if the Agent so requires, within five days of such notification
the Agent and the Borrower shall enter into negotiations with a view to
agreeing upon a substitute basis for determining the rates of interest
which may be applicable to such Advances and Advances in the future and any
such substitute basis that is agreed shall take effect in accordance with
its terms and be binding on each party hereto. Provided that the Agent may
not agree any such substitute basis without the prior written consent of
each Bank.
18.2 If no substitute basis is agreed upon within 10 business days
pursuant to Clause 18.1(iii) in respect of such Advances, any such Advance
made by a Bank pursuant to Clause 18.1(ii) shall bear interest during its
Term at the rate per annum equal to the sum of the Applicable Margin at such
time, the Mandatory Liquid Asset Costs Rate (if applicable) and the cost to
such Bank (as certified by it in good faith to the Agent with a copy to the
Borrower and expressed as a rate per annum) of funding such Advance from
whatever sources it may reasonably select.
19. ACCELERATION EVENT
If one or more Events of Default shall have occurred then at any time
thereafter and so long as the Event of Default in question is continuing
unremedied or unwaived, the Agent (if so instructed by the Requisite Lenders)
shall:
(i) cancel the Commitments whereupon the same shall be so cancelled
and reduced to zero; and/or
(ii) declare any outstanding Advances to be immediately due and
payable, whereupon the same shall become so due and payable, together with
accrued interest thereon and all other sums due hereunder forthwith; and/or
(iii) require the Borrower to provide security in respect of each
Letter of Credit and Contract Guarantee issued at its request in a manner
acceptable to the Fronting Bank in the currency of each such Letter of
Credit or Contract Guarantee, it being understood that in no
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event shall any Letter of Credit or Contract Guarantee or the obligations
of the Fronting Bank thereunder be cancelled, and security equal to, and
in the same currency as, the maximum amount that can be drawn under each
Letter of Credit outstanding at such time or paid under each Contract
Guarantee at such time shall be acceptable to the Fronting Bank.
20. DEFAULT INTEREST AND INDEMNITIES
20.1 If any amount of principal, Commitment Fee, or interest due and
payable by the Borrower hereunder is not paid on the due date therefor, the
Borrower does not reimburse the Fronting Bank for any drawing under a Letter
of Credit hereunder on the due date therefor, the Borrower does not reimburse
the Fronting Bank for any claim under a Contract Guarantee hereunder on the
due date therefor, any fees (other than the Commitment Fee) and other amounts
payable by the Borrower hereunder are not paid within ten days of the due
date therefor, or if any sum due and payable by the Borrower under any
judgment of any court in connection herewith is not paid in accordance with
the requirements of such judgment, the period beginning on such due date or,
as the case may be, the date required by such judgment and ending on the date
upon which the obligation of the Borrower to pay such sum (the balance
thereof for the time being unpaid being herein referred to as an "UNPAID
SUM") is discharged shall be divided into successive periods, each of which
(other than the first) shall start on the last day of the preceding such
period and the duration of each of which shall (except as otherwise provided
in this Clause 20) be reasonably selected by the Agent.
20.2 During each such period relating thereto as is mentioned in Clause
20.1 an unpaid sum shall bear interest at the rate per annum which is the sum
from time to time of two percent, the Applicable Margin at such time, the
Mandatory Liquid Asset Costs Rate Formula (if applicable) and LIBOR on the
Quotation Date therefor. Provided that:
(i) if, for any such period, LIBOR cannot be determined, the rate of
interest applicable to such unpaid sum in respect of the Agent or any
Lender shall be the sum from time to time of two percent, the Applicable
Margin at such time, the Mandatory Liquid Asset Costs Rate Formula (if
applicable) and the rate per annum notified to the Agent by such person (as
certified by it in good faith to the Borrower with a copy to the Agent) to
be that which expresses as a percentage rate per annum the cost to such
person of funding from whatever sources it may reasonably select its
portion of such unpaid sum for such period; and
(ii) if such unpaid sum is all or part of an Advance which became due
and payable on a day other than the last day of the Term thereof, the first
such period applicable thereto shall be of a duration equal to the
unexpired portion of that Term and the rate of interest applicable thereto
from time to time during such period shall be that which exceeds by one
percent the rate which would have been applicable to it had it not so
fallen due.
20.3 Any interest which shall have accrued under Clause 20.2 in respect
of an unpaid sum shall be due and payable and shall be paid by the Borrower
at the end of the period by reference to which it is calculated.
20.4 If any Lender or the Agent on its behalf receives or recovers all
or any part of an Advance made by such Lender otherwise than on the last day
of the Term thereof, the Borrower shall 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
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for a period starting on the third business day following the date of such
receipt or recovery and ending on the last day of the Term thereof.
20.5 Any unpaid sum shall (for the purposes of this Clause 20 and Clause
15) be treated as an advance and accordingly in this Clause 20 and Clause 15
the term "ADVANCE" includes any unpaid sum and "TERM", in relation to an
unpaid sum, includes each such period relating thereto as is mentioned in
Clause 20.1.
20.6 If a person receives an amount in respect of the Borrower's
liability under the Finance Documents or if that liability is converted into
a claim, proof, judgment or order in a currency other than the currency (the
"CONTRACTUAL CURRENCY") in which the amount is expressed to be payable under
the relevant Finance Document:-
(i) the Borrower shall indemnify that person as an independent
obligation against any loss or liability arising out of or as a result of
the conversion;
(ii) if the amount received by that person, when converted into the
contractual currency at a market rate in the usual course of its business,
is less than the amount owed in the contractual currency, the Borrower
shall forthwith on demand pay to that person an amount in the contractual
currency equal to the deficit; and
(iii) the Borrower shall pay to the person concerned on demand any
exchange costs and taxes payable in connection with any such conversion.
The Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
21. CURRENCY OF ACCOUNT
21.1 A repayment or prepayment of an Advance, or a payment by the
Borrower in accordance with Clause 8.2, is payable in the currency in which
that Advance or relevant Amount Demanded, as the case may be, is denominated.
21.2 Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
21.3 Amounts payable in respect of costs, expenses, taxes and the like
are payable in the currency in which they are incurred.
21.4 Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in sterling.
22. PAYMENTS
22.1 On each date on which this Agreement requires an amount to be paid
by the Borrower or any of the Lenders hereunder, the Borrower or, as the case
may be, such Lender shall make the same available in same day funds to the
Agent or to its account at such office or bank as it may notify to the
Borrower or Lender for this purpose.
22.2 Save as otherwise provided herein, each payment received by the
Agent for the account of another person shall be made available by the Agent
to such other person (in the case of a Lender, for the account of its
Facility Office) for value the same day by transfer to such account of such
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person with such bank in the principal financial centre of the relevant
currency as such person shall have previously notified to the Agent.
22.3 All payments required to be made by the Borrower hereunder shall be
calculated without reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on account of any set-off
or counterclaim.
22.4 Where a sum is to be paid hereunder to the Agent for account of
another person, the Agent shall not be obliged to make the same available to
that other person until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to whom
such sum was so made available shall on request refund the same to the Agent
together with an amount sufficient to indemnify the Agent against any cost or
loss it may have suffered or incurred by reason of its having paid out such
sum prior to its having received such sum.
23. SET-OFF AND NETTING OF PAYMENTS
23.1 The Borrower authorizes each Lender upon the occurrence of an Event
of Default and consequent acceleration of the obligations of the Borrower
hereunder pursuant to Clause 19 hereof to apply any credit balance to which
the Borrower is entitled on any account of the Borrower with that Lender in
satisfaction of any sum due and payable from the Borrower to such Lender
hereunder but unpaid; for this purpose, each Lender is authorized to purchase
with the moneys standing to the credit of any such account such other
currencies as may be necessary to effect such application. Such Lender shall
notify the Borrower of any such application. No Lender shall be obliged to
exercise any right given to it by this Clause 23.
23.2 If, on any occasion, the Agent receives a payment for the account
of the Borrower pursuant to Clause 22.1, the Agent may make available such
payment to the Borrower by application:
(i) first, in or towards payment the same day of any amount then due
from the Borrower hereunder to the person from whom the amount was so
received; and
(ii) secondly, in or towards payment the same day to the account of
the Borrower with such Lender in London as the Borrower shall have
previously notified to the Agent for this purpose.
24. REDISTRIBUTION OF PAYMENTS
24.1 Subject to Clause 24.2, if, at any time, the proportion which any
Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the
exercise of a right of set-off or combination of accounts or otherwise) in
respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under
this Agreement by the Borrower for account of such Recovering Bank and one or
more other Banks is greater (the portion of such receipt or recovery giving
rise to such excess proportion being herein called an "EXCESS AMOUNT") than
the proportion thereof so received or recovered by the Bank or Banks so
receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the Agent an amount equal to
such excess amount;
(ii) there shall thereupon fall due from the Borrower to such
Recovering Bank an amount equal to the amount paid out by such Recovering
Bank pursuant to paragraph (i) above, the amount so due being, for the
purposes hereof, treated as if it were an unpaid part of
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such Recovering Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (i) above as if such amount had been
received by it from the Borrower in respect of such relevant payment and
shall pay the same to the persons entitled thereto (including such
Recovering Bank) PRO RATA to their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to
enforce its rights hereunder and, as a result thereof or in connection
therewith, shall receive any excess amount (as defined in Clause 24.1), then
such Bank shall not be required to share any portion of such excess amount
with any Bank which has the legal right to, but does not, join in such action
or proceeding or commence and diligently prosecute a separate action or
proceeding to enforce its rights in another court.
25. FEES
The Borrower shall pay to the Agent for account of each Bank a
Commitment Fee (the "COMMITMENT FEE") on the amount of such Bank's Available
Commitment (less, if such Bank is also the Overdraft Provider, the Overdraft
Provider's outstanding Short-Term Advances on such day) from day to day
during the period beginning on 24th February, 1995 and ending on the
Termination Date at the applicable Commitment Fee Percentage per annum and
payable in arrear on and to (but excluding) each 31st March, 30th June, 30th
September and 31st December falling during the term of this Agreement and on
the Termination Date. For this purpose, Utilizations are taken at their
Original Sterling Amount.
26. COSTS AND EXPENSES
26.1 Except as otherwise agreed in writing by the Agents and the
Borrower, whether or not the Closing Date shall occur, the Borrower shall, on
demand of an Agent, reimburse such Agent to the extent not recovered under
any other Loan Documents (as defined in the Credit Agreement) or other
Finance Documents, for:
(i) all reasonable costs of furnishing all opinions required
hereunder by counsel for the Borrower (including, without limitation, any
opinions reasonably requested by such Agent as to any legal matters arising
hereunder or under any Finance Document) and of the Borrower's 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 and Contract Guarantee issued, thereunder and any amendments and
waivers thereto;
(iii) all the actual costs and expenses of creating and perfecting
any encumbrance in favour of the Lenders contemplated by the Finance
Documents including filing and recording fees and expenses, stamp duty or
similar taxes, reasonable fees and expenses of legal counsel for providing
such legal opinions as such Agent may reasonably request in connection
therewith and 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
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Lenders in connection with any work-out or collection of any of the
obligations of the Borrower under this Agreement and the Finance Documents
or enforcement of this Agreement or the Finance Documents;
(v) all reasonable accountable out-of-pocket expenses (including
travel and due diligence expenses) incurred by the Lenders in connection
with the negotiation and closing of the Finance Documents; and
(vi) all other actual and reasonable out-of-pocket expenses incurred
by the Agent in connection with the making of Advances and issuance of
Letters of Credit and Contract Guarantees hereunder.
26.2 If the Borrower fails to perform any of its obligations under
Clause 26.1, each Bank shall, in its Proportion, indemnify each Agent and
Arranger against any loss incurred by it as a result of such failure and the
Borrower shall forthwith reimburse each Bank for any payment made by it
pursuant to Clause 26.1.
26.3 In addition to the provisions of Clause 26.1 and whether or not the
Closing Date shall occur, the Borrower agrees to indemnify, pay and hold each
Agent and each Lender, and their respective officers, directors, employees,
agents, and affiliates (collectively called the "INDEMNITEES") harmless from
and against, any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, and out-of-pocket costs,
expenses and disbursements of any kind or nature whatsoever (including,
without limitation, reasonable legal fees) in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto, that may
be imposed on, incurred by, or asserted against that Indemnitee, in any
manner relating to or arising out of this Agreement or any Finance Document
(other than the Nu-kote Guarantees and the Collateral Documents), or the use
or intended use of the proceeds thereof or in any way relating to or
resulting from the actions or assets of the Borrower or any of their
respective subsidiaries (the "INDEMNIFIED LIABILITIES") provided that the
Borrower shall have no obligation under this Clause 26.3 to any Indemnitee
arising from the fraud, gross negligence, willful misconduct or willful
breach of this Agreement or any Finance Document (other than the Nu-kote
Guarantees and the Collateral Documents) by any party hereto and its related
Indemnitees.
27. THE AGENTS AND THE LENDERS
27.1 Each Lender hereby appoints the Agent to act as its agent in
connection with this Agreement and the Finance Documents and the Collateral
Agent to act as its agent in connection with the Collateral Documents and
authorizes each of the Agent and the Collateral Agent to exercise such
rights, powers, authorities and discretions as are specifically delegated to
the Agent by the terms hereof together with all such rights, powers,
authorities and discretions as are reasonably incidental thereto.
27.2 Each of the Agent and the Collateral Agent may:
(i) assume that:
(a) any representation made by any Obligor in connection with
any Finance Document is true;
(b) no Event of Default has occurred;
(c) no Obligor is in breach of or default under its obligations
under any Finance Document; and
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(d) any right, power, authority or discretion vested in a
Finance Document upon the Requisite Lenders, the Lenders or any other
person or group of persons has not been exercised, unless it has, in
its capacity as agent for the Lenders hereunder, received notice to
the contrary from any other party hereto;
(ii) assume that the Facility Office of each Lender is that identified
with its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee, or in the
case of an Overdraft Facility Transferee, at the end of the Overdraft
Provider Transfer Certificate to which it is a party as the Overdraft
Facility Transferee) until it has received from such Lender a notice
designating some other office of such Lender to replace its Facility Office
and act upon any such notice until the same is superseded by a further such
notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may to it
seem necessary, expedient or desirable and rely upon any advice so
obtained;
(iv) rely as to any matters of fact which might reasonably be expected
to be within the knowledge of the Borrower upon a certificate signed by or
on behalf of the Borrower;
(v) rely upon any communication or document believed by it to be
genuine;
(vi) refrain from exercising any right, power or discretion vested in
it as Agent under any Finance Document unless and until instructed by the
Requisite Lenders as to whether or not such right, power or discretion is
to be exercised and, if it is to be exercised, as to the manner in which it
should be exercised; and
(vii) retrain 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,
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power or discretion vested in it as agent hereunder.
27.4 Notwithstanding anything to the contrary expressed or implied
herein, neither the Agent nor the Collateral Agent shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by an Obligor in
connection with a Finance Document is true;
(b) the occurrence or otherwise of any Event of Default;
(c) the performance by each Obligor of its obligations under
each Finance Document to which it is a party; or
(d) any breach of or default by an Obligor of or under its
obligations under any Finance Document;
(ii) be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account;
(iii) be bound to disclose to any other person any information
relating to the Borrower if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person; or
(iv) be under any obligations other than those for which express
provision is made herein.
27.5 Each Lender shall, in its Proportion, from time to time on demand
by the Agent or as the case may be, the Collateral Agent, indemnify the Agent
or as the case may be, the Collateral Agent against any and all costs,
claims, losses, expenses (including, without limitation, legal fees) and
liabilities together with any VAT thereon which it may incur, otherwise than
by reason of its own gross negligence or willful misconduct, in acting in its
capacity as agent hereunder.
27.6 The Agent and the Collateral Agent do not accept any responsibility
for the accuracy and/or completeness of any information supplied by the
Borrower in connection herewith or for the legality, validity, effectiveness,
adequacy or enforceability of this Agreement or any other Finance Document
and the Agent and the Collateral Agent shall not be under any liability as a
result of taking or omitting to take any action in relation to this Agreement
or any other Finance Document, save in the case of fraud, gross negligence or
willful misconduct.
27.7 Each of the Lenders agrees that it will not assert or seek to
assert against any director, officer or employee of the Agent or the
Collateral Agent any claim it might have against any of them in respect of
the matters referred to in Clause 27.6.
27.8 The Agent and the Collateral Agent may accept deposits from, lend
money to and generally engage in any kind of banking or other business with
the Borrower.
27.9 Each of the Agent and the Collateral Agent may resign its
appointment hereunder at any time without assigning any reason therefor by
giving not less than thirty days' prior written notice to that effect to each
of the other parties hereto and by appointing any of its affiliates in its
stead, such appointment to take effect from the date of resignation of the
resigning agent.
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27.10 If a successor to the Agent or the Collateral Agent is appointed
under the provisions of Clause 27.9, then (i) the retiring Agent shall be
discharged from any further obligation hereunder but shall remain entitled to
the benefit of the provisions of this Clause 27 and (ii) its successor and
each of the other parties hereto shall have the same rights and obligations
amongst themselves as they would have had if such successor had been a party
hereto.
27.11 It is understood and agreed by each Lender that it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of the Borrower and,
accordingly, each Lender warrants to the Agent and the Collateral Agent that
it has not relied on and will not hereafter rely on the Agent and the
Collateral Agent or any one of them:
(i) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by the Borrower in connection with
any Finance Document or the transactions therein contemplated (whether or
not such information has been or is hereafter circulated to such Lender by
the Agent and the Collateral Agent or any one of them); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the
Borrower.
27.12 In acting as agent and/or collateral agent for the Lenders, the
agency division of each of the Agent and the Collateral Agent shall be
treated as a separate entity from any other of its divisions or departments
and, notwithstanding the foregoing provisions of this Clause 27, in the event
that the Agent or the Collateral Agent should act for the Borrower in any
capacity in relation to any other matter, any information given by the
Borrower to the Agent or the Collateral Agent in such other capacity may be
treated as confidential by the Agent or the Collateral Agent.
28. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and ensure 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 BORROWER
The Borrower shall not be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
30. ASSIGNMENTS AND TRANSFERS BY BANKS
30.1 Any Bank may, at any time, assign all or any of its rights and
benefits hereunder, sell participations in, or transfer in accordance with
Clause 30.3 (but not otherwise) all or any of its rights, benefits and
obligations hereunder to any person. Provided that:
(i) no such assignment or transfer may be made:
(a) unless the Bank also transfers or assigns to the same person
a pro rata share of its rights, benefits and obligations (if any)
under the Credit Agreement and the Swiss Facility (unless such
assignment or transfer is to an Eligible Assignee as defined in the
Credit Agreement with the prior written consent of the Agent, which
consent shall not be unreasonably withheld);
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(b) without the prior written consent of the Fronting Bank, the
Overdraft Provider and the Agent, such consent not to be unreasonably
withheld or delayed, and the prior written consent of the Borrower if
such assignment or transfer is made to any person that is not an
Eligible Assignee as defined in the Credit Agreement and no Event of
Default has occurred and is continuing, such consent not to be
unreasonably withheld or delayed; and
(c) if the result thereof would be that the Borrower would be
liable to pay an additional amount or amounts pursuant to Clauses 14
or 15 which additional amount or amounts would not have been payable
had no such transfer or assignment occurred unless such Transferee or
assignee agrees to waive its rights to receive such additional amount
or amounts and any rights under Clause 24 with respect to such
amounts; and
(ii) no such participation may be made unless:
(a) the relevant Bank remains the lender of record hereunder and
the proposed participant does not become the lender of record
hereunder;
(b) the relevant Bank's obligations hereunder shall remain
unchanged and it shall remain solely responsible for the performance
thereof;
(c) all parties hereto shall be entitled to deal solely with the
relevant Bank in connection with its Commitment and other rights and
obligations of the relevant Bank under the Finance Documents;
(d) such Bank shall be solely responsible for any withholding
taxes or filing or reporting requirements relating to such
participation and shall hold harmless the Borrower and the Agent
against the same;
(e) such participant shall represent and warrant that it does
not engage in the same line of business as, or derive more than 10% of
its revenues in the same line of business as, Borrower; and
(f) any such participant which is not an affiliate of the
relevant Bank shall not be entitled to require the relevant Bank to
take or omit to take any action under any Finance Document except
action directly affecting the extension of the "Termination Date"
hereunder or the reduction of the principal amount or the decrease in
the rate of interest payable hereunder or any fees related thereto.
30.2 If any Bank assigns all or any of its rights and benefits hereunder
in accordance with Clause 30.1, then, unless and until the assignee has
agreed with the Agent and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had been
an original party hereto as a Bank, the Agent and the other Banks shall not
be obliged to recognize such assignee as having the rights against each of
them which it would have had if it had been such a party hereto.
30.3 If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations hereunder as contemplated in Clause 30.1, then such
transfer shall be effected by the delivery to the Borrower and the Agent of a
duly completed and duly executed Transfer Certificate in which event, on the
later of the Transfer Date specified in such Transfer Certificate and the
fifth business day after (or such earlier business day endorsed by the Agent
on such Transfer Certificate falling on or after) the
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date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations hereunder,
the Borrower and such Bank shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights, benefits and obligations being
referred to in this Clause 30.3 as "discharged rights and obligations");
(ii) the Borrower and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one another
which differ from such discharged rights and obligations only insofar as
the Borrower and such Transferee have assumed and/or acquired the same in
place of the Borrower and such Bank;
(iii) the Agent, 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 or Contract
Guarantee.
30.4 On the date upon which a transfer takes effect pursuant to Clause
30.3, the Transferee in respect of such transfer shall pay to the Agent for
its own account a transfer fee of L500.
30.5 The Borrower may, at any time and from time to time, upon notice to
the Agent, request that a different Lender specified by the Borrower be
appointed as the Overdraft Provider. Promptly upon such other Lender
agreeing to such request and repayment of all outstanding Short-Term Advances
together with accrued interest thereon to the existing Overdraft Provider,
the existing Overdraft Provider shall transfer to such Lender all (but not
part) of its rights, benefits and obligations hereunder as the Overdraft
Provider.
Any transfer contemplated by this Clause 30.5 shall be effected by the
delivery to the Borrower and the Agent of a duly completed and duly executed
Overdraft Provider Transfer Certificate in which event, on the later of the
Transfer Date specified in such certificate and the fifth business day after
(or such earlier business day endorsed by the Agent on such certificate
falling on or after) the date of delivery of such certificate to the Agent:
(i) the Borrower and the Overdraft Provider shall be released from
further obligations towards one another hereunder and their respective
rights against one another shall be cancelled;
(ii) the Borrower and the Overdraft Facility Transferee shall acquire
the same rights and benefits and assume the same obligations towards one
another as they would have acquired and assumed had the Overdraft Facility
Transferee been an original party hereto as the Overdraft Provider; and
(iii) the Agents, the Overdraft Facility Transferee and the other
parties hereto shall acquire the same rights and benefits and assume the
same obligations between themselves as they would have acquired and assumed
had the Overdraft Facility Transferee been an original party hereto as the
Overdraft Provider with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer.
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31. DISCLOSURE OF INFORMATION
Each Lender shall take normal and reasonable precautions to maintain the
confidentiality of all information obtained pursuant to the requirements of
any Finance Document which has been identified as such by the Borrower
(including, without limitation, the reports delivered pursuant to the Third
Schedule to the Original Agreement) but may, in any event, make disclosures
reasonably required by any bona fide assignee, Transferee, Overdraft Facility
Transferee or participant (or prospective assignee, Transferee or
participant) in connection with the contemplated assignment or transfer of
any of its rights and obligations thereunder Provided that (a) such assignee,
Transferee, Overdraft Facility Transferee, participant or person agrees to
comply with the provisions of this Clause 31, (b) such prospective assignee,
Transferee, Overdraft Facility Transferee or participant shall have executed
a confidentiality agreement substantially in the form of the Exhibit, and (c)
no Lender shall be obliged or required to return any written information or
other materials furnished by the Borrower in connection with any Finance
Document. Notwithstanding the foregoing, the Agents and/or any Lender shall
be entitled to disclose any such information:
(i) if required to do so by an order of a court of a competent
jurisdiction whether in pursuance of any procedure for discovering
documents or otherwise; or
(ii) if required by any law or regulation having the force of law; or
(iii) pursuant to any requirement or request of any fiscal, monetary,
tax, governmental or other competent authority; or
(iv) to its auditors, legal or other professional advisors; or
(v) which is in the public domain,
and unless specifically prohibited by applicable law or court order, such
Lender shall notify the Borrower of any disclosure pursuant to paragraphs
(i), (ii) and (iii).
32. CALCULATIONS AND EVIDENCE OF DEBT
32.1 Interest and Commitment Fee shall accrue from day to day and shall
be calculated on the basis of a year of 365 days or (in the case of interest
payable on an amount denominated in an Optional Currency) 360 days and the
actual number of days elapsed.
32.2 Letter of Credit and Contract Guarantee commission in respect of
any Letter of Credit or Contract Guarantee, and any period of the Term
thereof determined pursuant to Clause 9, shall be calculated on the basis of
a year of 365 days or (in the case of a Letter of Credit or Contract
Guarantee denominated in an Optional Currency) 360 days and the actual number
of days in such period (or, in any case where market practice differs, in
accordance with market practice).
32.3 If on any occasion a Reference Bank or Bank fails to supply the
Agent with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be determined
from those quotations which are supplied to the Agent.
32.4 Each Lender shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing to it
hereunder.
32.5 The Agent shall maintain on its books a control account or accounts
in which shall be
-31-
recorded (i) the amount of any Advance made or arising hereunder (and the
name of the Lender to which such sum relates) and the face amount of any
Letter of Credit issued or Contract Guarantee (and each Lender's share
therein), (ii) the amount of all principal, interest and other sums due or to
become due from the Borrower to any of the Lenders hereunder and each
Lender's share therein and (iii) the amount of any sum received or recovered
by the Agent hereunder and each Lender's share therein.
32.6 In any legal action or proceeding arising out of or in connection
with this Agreement, the entries made in the accounts maintained pursuant to
Clauses 32.4 and 32.5 shall in the absence of manifest error be conclusive
evidence of the existence and amounts of the obligations of the Borrower
therein recorded.
32.7 A certificate of a Lender as to (i) the amount by which a sum
payable to it hereunder is to be increased under Clause 14 or (ii) the amount
for the time being required to indemnify it against any such cost, payment or
liability as is mentioned in Clause 15 shall, in the absence of manifest
error, be conclusive for the purposes of this Agreement.
32.8 Each Lender hereby represents that as at 24th February, 1995 (i)
its participation as a Lender hereunder and extension of credit in respect
hereof will not require registration or qualification under any applicable
securities laws nor is it illegal (as referred to in Clause 16), and (ii) it
is a Qualifying Lender.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent 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.
-32-
35. NOTICES
35.1 Each communication to be made hereunder shall, unless otherwise
stated, be made in writing by telex, telefax or letter.
35.2 Any communication or document (unless made by telefax) to be made
or delivered by one person to another pursuant to this Agreement shall
(unless that other person has by fifteen days' written notice to the Agent
specified another address) be made or delivered to that other person at the
address identified with its signature below (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a party as Transferee,
or in the case of an Overdraft Facility Transferee, at the end of the
Overdraft Provider Transfer Certificate to which it is a party of the
Overdraft Facility Transferee) and shall be deemed to have been made or
delivered when despatched and the appropriate answerback received (in the
case of any communication made by telex) or (in the case of any communication
made by letter) when left at that address or (as the case may be) ten days
after being deposited in the post postage prepaid in an envelope addressed to
it at that address. Provided that any communication or document to be made
or delivered to the Agent shall be effective only when received by the Agent
and then only if the same is expressly marked for the attention of the
department or officer identified with the Agent's signature below (or such
other department or officer as the Agent shall from time to time specify for
this purpose).
35.3 Where any provision of this Agreement specifically contemplates
telephone or telefax communication made by one person to another, such
communication shall be made to that other person at the relevant telephone
number specified by it from time to time for the purpose and shall be deemed
to have been received when made (in the case of any communication by
telephone) or when transmission has been completed (in the case of any
telecommunication by telefax). Each such telefax communication, if made to
the Agent by the Borrower shall be signed by the person or persons authorized
by the Borrower in the certificate delivered pursuant to the Third Schedule
of the Original Agreement and shall be expressed to be for the attention of
the department or officer whose name has been notified for the time being for
that purpose by the Agent to the Borrower.
35.4 Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation thereof.
36. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
Faxes of signatures shall be binding and effective as originals.
-33-
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 the Borrower therefrom, shall
in any event be effective without the written concurrence of the Requisite
Lenders and the Borrower; except that any amendment, modification,
termination, or waiver that (i) changes the amount of the Commitments or the
principal amount of the Advances or extends the scheduled maturity thereof or
changes the currency of any payment hereunder; (ii) changes any Proportion or
the definition of "Requisite Lenders"; (iii) extends the dates on which
interest is or fees are payable hereunder, or the maximum duration of
interest periods; or (iv) reduces any interest rates payable on the Advances
or any fees (other than administrative fees) payable hereunder or under any
Finance Document, each shall be effective only if evidenced by a writing
signed by or on behalf of all Lenders under this Agreement and the Borrower;
Provided, however, that (A) the First Schedule and the Commitments and
Proportions shall be amended from time to time to give effect to the
Commitments and Proportions of each new Bank that becomes a party to this
Agreement at the time such Bank becomes a Bank and (B) any amendment,
modification or waiver that changes any administrative fees, or the times at
which such fees are payable hereunder shall be effective only it evidenced by
a writing signed by or on behalf of the Borrower and each Lender affected
thereby. Any amendment, modification, termination or waiver of any of the
conditions precedent to funding an Advance shall be effective only if
evidenced by a writing signed by or on behalf of the Requisite Lenders and
the Borrower. No amendment, modification, termination or waiver of any
provision of the agency provisions of this agreement shall be effective
without the written concurrence of the Agents, the Requisite Lenders and the
Borrower. No amendment, modification, termination, or waiver of any Finance
Document that releases any guarantor or releases any collateral under the
Debenture not otherwise permitted under the Credit Agreement or the Debenture
shall be effective unless evidenced by a writing signed by or on behalf of
Banks having 80 percent, 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 the Borrower shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent with respect to this Agreement
effected in accordance with this Clause 37 shall be binding upon the Borrower.
38. GOVERNING LAW
This Agreement shall be governed by, and shall be construed in
accordance with, English law.
39. WAIVERS
Borrower hereby expressly acknowledges and agrees that, as of the
Closing Date, save and except the Hedging Documents, it does not have any
setoffs, counterclaims, adjustments, recoupments, defenses, claims or actions
of any character, whether contingent, non-contingent, liquidated,
unliquidated, fixed, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured, known or unknown, against any Bank, the
Agent, the Documentation Agent, the Collateral Agent, the Fronting Bank, or
the Overdraft Provider or any grounds or cause for reduction, modification or
subordination of the obligations of Borrower under this Agreement and/or any
Finance Document or any liens or security interests of any Bank, the Agent,
the Documentation Agent, the Collateral Agent, the Fronting Bank, or the
Overdraft Provider. To the extent Borrower possesses, as of the Closing Date,
any such setoffs, counterclaims, adjustments, recoupments, claims, actions,
grounds or causes,
-34-
Borrower hereby waives, and hereby releases each Bank, the Agent, the
Documentation Agent, the Collateral Agent, the Fronting Bank, and the
Overdraft Provider from, any and all of such setoffs, counterclaims,
adjustments, recoupments, claims, actions, grounds and causes, such waiver
and release being with full knowledge and understanding of the circumstances
and effects of such waiver and release and after having consulted counsel
with respect thereto. Borrower hereby acknowledges that it is indebted to
Banks with respect to Advances in the principal amount of L6,275,000,
including L1,275,000 Short Term Advances, which are outstanding on the date
hereof. Borrower hereby ratifies and confirms its obligations under the
Finance Documents. This Agreement amends and restates the Original Agreement
in its entirety.
AS WITNESS the hands of the duly authorized representatives of the
parties hereto the day and year first before written.
-35-
THE FIRST SCHEDULE
The Banks
BANK COMMITMENT (L)
Barclays Bank PLC 878,500.00
NationsBank, N.A. 2,073,887.50
Commerzbank AG 627,500.00
Deutsche Bank AG 627,500.00
The First National Bank of Chicago 627,500.00
Societe Generale 618,087.50
ABN AMRO Bank, N.V. 411,012.50
Credit Lyonnais, S.A. 411,012.50
-36-
THE SECOND SCHEDULE
FORM OF TRANSFER CERTIFICATE
To: Barclays Bank PLC
Pelikan Scotland Limited
TRANSFER CERTIFICATE
relating to the third amended and restated agreement dated 31 July, 1997 (the
"FACILITY AGREEMENT") whereby a revolving credit facility was made available
to Pelikan Scotland Limited as borrower by a group of banks on whose behalf
Barclays Bank PLC acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any
contrary indication, have the same meanings herein. The terms Bank and
Transferee are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under
the heading "Bank's Commitment" or "Advance(s)" accurately summarizes its
Commitment and/or, as the case may be, the Term and Repayment Date of one or
more existing Advances made by it and (ii) requests the Transferee to accept
and procure the transfer to the Transferee of the portion specified in the
schedule hereto of, as the case may be, its Commitment and/or such Advance(s)
by counter-signing and delivering this Transfer Certificate to the Agent at
its address for the service of notices specified in the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the purposes
of Clause 30.3 of the Facility Agreement so as to take effect in accordance
with the terms thereof on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of any
such information and further agrees that it has not relied and will not rely
on the Bank to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the
Borrower.
5. The Transferee hereby undertakes with the Borrower, the Bank and
each of the other parties to the Facility Agreement that it will perform in
accordance with their terms all those obligations which by the terms of the
Facility Agreement will be assumed by it after delivery of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any) subject
to which this Transfer Certificate is expressed to take effect. The
Transferee hereby makes the representations made by each Bank in Clause 32.8
of the Facility Agreement as though made on and as of the date hereof.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facility Agreement or any document relating
thereto and assumes no responsibility for the financial condition of the
Borrower or for the performance and observance by the Borrower of any of its
obligations under the Facility Agreement or any document relating thereto and
any and all such conditions and warranties, whether
-37-
express or implied by law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility
Agreement (or any document relating thereto) shall oblige the Bank to (i)
accept a re-transfer from the Transferee of the whole or any part of its
rights, benefits and/or obligations under the Facility Agreement transferred
pursuant hereto or (ii) support any losses directly or indirectly sustained
or incurred by the Transferee for any reason whatsoever including, without
limitation, the non-performance by the Borrower or any other party to the
Facility Agreement (or any document relating thereto) of its obligations
under any such document. The Transferee hereby acknowledges the absence of
any such obligation as is referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Term and Repayment Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Telefax:
Telephone:
-38-
THE THIRD SCHEDULE
CONDITIONS PRECEDENT
Each of the following:
1. A certificate of the secretary or a director of the Borrower
certifying that the copy of its constitutive documents delivered to the Agent
in connection with the Original Agreement (as amended, where applicable, by
any variation thereof which has itself been delivered to the Agent and
certified correct, complete and in full force and effect) remains correct,
complete and in full force and effect.
2. A copy of a resolution of the Board of Directors of the Borrower:
(a) approving the terms of this Agreement and all other documents to
be executed by the Borrower in connection herewith; and
(b) authorizing a specified person or persons:
(i) to execute this Agreement and all other documents to be
executed by it hereunder or thereunder in connection herewith or
therewith; and
(ii) (unless previously so appointed and unchanged) to give all
notices, requests, instructions, certificates and other documents to
the Agent in connection with each of the Finance Documents to which it
is a party.
3. A certificate of a director of the Borrower certifying that the
utilization of the Facility in full would not cause any borrowing or other
limit binding on it to be exceeded.
4. A copy of the signature of each of the persons authorized by the
resolutions referred to in paragraph 2(b) above.
5. A certificate of a director of the Borrower confirming that no
Event of Default or Potential Event of Default will be in existence
immediately after the transactions due to take place on the Closing Date (as
defined in the Credit Agreement) have taken place.
6. A legal opinion relating to this Agreement from ▇▇▇▇▇ & ▇▇▇▇▇,
English legal advisers to the Agent, in form and substance satisfactory to
the Agent.
Each copy document delivered under this part of this schedule by the Borrower
shall be certified by a director or the secretary of the Borrower, as at the
date hereof (or such other date as the Agent may agree), to be correct,
complete and in full force and effect as at such date.
-39-
THE FOURTH SCHEDULE
UTILIZATION REQUEST
From: Pelikan Scotland Limited
To: [Barclays Bank PLC]/[Overdraft Provider]
Dated:
Dear Sirs,
1. We refer to the third amended and restated agreement dated 31 July,
1997 (the "Facility Agreement") and made between Pelikan Scotland Limited as
borrower, Barclays Bank PLC as agent, NationsBank of Texas, N.A. as
collateral and documentation agent, Barclays Bank PLC as fronting bank,
Barclays Bank PLC as overdraft provider and the financial institutions named
therein as banks. Terms defined in the Facility Agreement shall have the same
meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement,
we wish [the Banks/Overdraft Provider to make Advances/the Fronting Bank to
issue a Letter of Credit/Contract Guarantee] * as follows:
(i) Aggregate *[principal/face] amount:
(ii) Utilization Date:
(iii) Term:
(iv) Currency:
(v) *[Repayment Date/Expiry Date]:
3. *[The proceeds of this Utilization should be credited to [insert
account details]]/[The Letter of Credit/Contract Guarantee should be issued in
favour of [name of recipient in the form attached and delivered to the
recipient at the address of recipient]].
Yours faithfully
-------------------------------
for and on behalf of
PELIKAN SCOTLAND LIMITED
* Delete as appropriate
-40-
THE FIFTH SCHEDULE
TIMETABLES
UTILIZATION BY MEANS OR ADVANCES OTHER THAN SHORT-TERM ADVANCES
"D" Utilization Date
"Bs" Banks
"A" Agent
"( )" Clause number of Agreement
1. Utilization Request to A (6. 1) D-2 9:30 a.m.
2. A to notify Bs of allocations by (6.4) D-2 10:30 a.m.
3. LIBOR fixing (1.1) D-2 11:00 a.m.
UTILIZATION BY MEANS OF SHORT-TERM ADVANCES
"D" - Utilization Date
"OP" - Overdraft Provider
"( )" - Clause number of Agreement
Utilization Request to OP (6.1) D 9:30 a.m.
UTILIZATION BY MEANS OF LETTERS OF CREDIT
"D" = Utilization Date
"D-x" = x business days prior to Utilization Date
"Bs" = Banks
"A" = Agent
"( )" = Clause number of Agreement
1. Utilization Request to A (6.1) D-3 9:30 a.m.
2. Bs to have agreed identity of D-3 3:00 p.m.
recipient of Letter of Credit (7.2(iii))
3. Where applicable, form of Letter D-3 3:00 p.m.
of Credit/Contract Guarantee to be agreed (7.2(iv))
4. A to notify Bs of allocations (6.4) D 10:00 a.m.
5. Letter of Credit/Contract Guarantee to be issued (7.2) D 3:00 p.m.
-41-
THE SIXTH SCHEDULE
MANDATORY LIQUID ASSET COSTS RATE FORMULA
The Mandatory Liquid Asset Costs Rate to compensate the Banks for the cost
attributable to an Advance or other sum denominated in sterling for any
period for which such cost is to be computed under this Agreement resulting
from the imposition from time to time by the Bank of England (or other
Governmental authorities or agencies) of a requirement to place
non-interest-bearing deposits with the Bank of England, for the payment of
Special Deposits and the maintenance of secured money with certain financial
institutions (recognized for this purpose by the Bank of England) will be the
rate determined by the Agent (rounded upwards, if necessary, to four decimal
places) on the first day of the relevant period and for the duration of such
period (but in respect of such a period of longer than three months, the
average of the rates (rounded upwards as aforesaid) computed on a three
monthly basis during such period) in accordance with the following formula:
rate = XL + B(L-C + S(▇-▇)
-------------------
100 - (X + S)
Where:
"X" is the amount required to be maintained by Barclays Bank PLC on
non-interest-bearing balances with the Bank of England expressed as a
percentage of eligible liabilities fixed by the Bank of England (or
other Governmental authorities or agencies). For the purpose of this
formula, this percentage will be expressed as a number.
"L" is the average of the offered quotations by the Reference Banks for
sterling deposits for the period for which the formula is being applied
in the London Interbank Market at or about 11.00 a.m. on the day of
quotation, expressed as a number and not as a percentage rate per annum.
"B" is the average level of secured deposits expressed as a percentage
of eligible liabilities which Barclays Bank PLC is required by the Bank
of England to maintain with certain financial institutions (recognized
for this purpose by the Bank of England). For the purpose of this
formula this percentage will be expressed as a number.
"C" is the average of the rates at which certain financial institutions
(recognized for this purpose by the Bank of England) bid for sterling
deposits for the period for which the formula is being applied from the
Reference Banks at or about 11.00 a.m. on the day of quotation,
expressed as a number and not as a percentage rate per annum.
"S" is the amount of Special Deposits required to be maintained by
Barclays Bank PLC expressed as a percentage of eligible liabilities
fixed by the Bank of England (or other Governmental authorities or
agencies). For the purposes of this formula this percentage will be
expressed as a number.
"D" is the rate of interest paid by the Bank of England on Special
Deposits, expressed as a number and not as a percentage rate per annum.
In the event of any change in 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
-42-
formula for that set out above.
-▇▇-
▇▇▇ ▇▇▇▇▇▇▇ SCHEDULE
FORM OF OVERDRAFT PROVIDER TRANSFER CERTIFICATE
To: Barclays Bank PLC, as Agent
Pelikan Scotland Limited
OVERDRAFT PROVIDER TRANSFER CERTIFICATE
relating to the third amended and restated agreement (the "FACILITY
AGREEMENT") dated 31 July, 1997 whereby a revolving credit facility was made
available to Pelikan Scotland Limited as borrower by a group of banks on
whose behalf Barclays Bank PLC acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any
contrary indication, have the same meanings herein. The terms Overdraft
Provider and Overdraft Facility Transferee are defined in the schedule hereto.
2. The Overdraft Provider requests the Overdraft Facility Transferee
to accept and procure the transfer to the Overdraft Facility Transferee the
obligation to make Short-Term Advances pursuant to the Facility Agreement by
counter-signing and delivering this Overdraft Provider Transfer Certificate
to the Agent at its address for the service of notices specified in the
Facility Agreement.
3. The Overdraft Facility Transferee hereby requests the Agent to
accept this Overdraft Provider Transfer Certificate as being delivered to the
Agent pursuant to and for the purposes of Clause 30.5 of the Facility
Agreement so as to take effect in accordance with the terms thereof on the
Transfer Date or on such later date as may be determined in accordance with
the terms thereof.
4. The Overdraft Facility Transferee confirms that it has received a
copy of the Facility Agreement, together with such other information as it
has required in connection with this transaction and that it has not relied
and will not hereafter rely on the Overdraft Provider to check or enquire on
its behalf into the legality, validity, effectiveness, adequacy, accuracy, or
completeness of any such information and further agrees that it has not
relied and will not rely on the Overdraft Provider to assess or keep under
review on its behalf the financial conditions, creditworthiness, condition,
affairs, status or nature of the Borrower.
5. The Overdraft Facility Transferee hereby undertakes with the
Borrower, the Overdraft Provider and each of the other parties to the
Facility Agreement that it will perform in accordance with their terms all
the obligations of the Overdraft Provider under the Facility Agreement after
delivery of this Overdraft Provider Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Overdraft
Provider Transfer Certificate is expressed to take effect. The Overdraft
Facility Transferee hereby makes the representations made by the Overdraft
Provider in Clause 32.8 of the Facility Agreement as though made on and as of
the date hereof.
6. The Overdraft Provider makes no representation or warranty and
assumes no responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Facility Agreement or any
document relating thereto and assumes no responsibility for the financial
condition of the Borrower or for the performance and observance by the
Borrower of any of their respective obligations 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
-44-
Agreement (or any document relating thereto) shall oblige the Overdraft
Provider to (i) accept a re-transfer from the Overdraft Facility Transferee
of the whole or any part of its rights, benefits and/or obligations under the
Facility Agreement transferred pursuant hereto or (ii) support any losses
directly or indirectly sustained or incurred by the Overdraft Facility
Transferee for any reason whatsoever including, without limitation, the
non-performance by the Borrower or any other party to the Facility Agreement
(or any documents relating thereto) of its obligations under any such
document. The Overdraft Facility Transferee hereby acknowledges the absence
of any such obligation as it referred to in (i) or (ii) above.
8. This Overdraft Provider Transfer Certificate and the rights and
obligations of the parties hereunder shall be governed by and construed in
accordance with English law.
THE SCHEDULE
1. Overdraft Provider:
2. Overdraft Facility Transferee:
3 Transfer Date:
[TRANSFEROR OVERDRAFT [TRANSFEREE OVERDRAFT
PROVIDER] PROVIDER]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF
OVERDRAFT FACILITY TRANSFEREE
Address: Telex:
Contact Name: Telefax:
Account for Payments: Telephone:
-45-
SIGNATORIES
THE BORROWER
PELIKAN SCOTLAND LIMITED
By:
--------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇-▇) ▇▇▇▇ ▇▇▇
THE AGENT
BARCLAYS BANK PLC
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
Notice Address:
Barclays Bank PLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE FRONTING BANK
BARCLAYS BANK PLC
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
Notice Address:
Barclays Bank PLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE OVERDRAFT PROVIDER
BARCLAYS BANK PLC
By:
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Name:
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Title:
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Notice Address:
Barclays Bank PLC
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE COLLATERAL AGENT
NATIONSBANK OF TEXAS, N.A.
By:
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Senior Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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THE DOCUMENTATION AGENT
NATIONSBANK OF TEXAS, N.A.
By:
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Senior Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
THE BANKS
BARCLAYS BANK PLC
By:
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Name:
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Title:
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Notice Address:
Barclays Bank PLC
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NATIONSBANK, N.A.
By:
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Senior Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
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Title:
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Notice Address:
The First National Bank of Chicago
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
COMMERZBANK AG
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Address: Atlanta Agency
Promenade Two, Suite 3500
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DEUTSCHE BANK AG LONDON
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Notice Address:
Deutsche Bank, A.G., New York Branch
and/or Cayman Islands Branch
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SOCIETE GENERALE
By:
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Name:
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Title:
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Address: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
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ABN AMRO BANK, N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Notice Address:
ABN AMRO Bank, N.V.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
CREDIT LYONNAIS, S.A.
By:
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Name:
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Title:
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Notice Address:
Credit Lyonnais
1301 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
THE EXHIBIT
[FORM OF CONFIDENTIALITY AGREEMENT]
The undersigned, ______________________________________ a prospective
[assignee/Transferee/participant/Overdraft Facility Transferee] to that certain
Third Amended and Restated Revolving Credit Facility Agreement dated as of
31 July, 1997 (such agreement, as so amended and restated and as it may be
amended, amended and restated, supplemented or otherwise modified from time to
time, being the "Credit Agreement"; capitalized terms used herein without
definition shall have the meanings assigned those terms in the Credit Agreement
between Pelikan Scotland Limited as borrower, Barclays Bank PLC, as agent,
NationsBank of Texas, N.A., as collateral agent, NationsBank of Texas, N.A., as
documentation agent, and the Lenders party thereto, ("Prospective [assignee/
Transferee/participant/Overdraft Facility Transferee]"), hereby agrees as
follows for the benefit of the Borrower:
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
agrees that all financial statements, financial projections, operating or other
data, tax returns, reports and other information, that have been or may be
provided to (i) Prospective [assignee/Transferee/participant/Overdraft Facility
Transferee], (ii) the employees and agents of Prospective [assignee/Transferee/
participant/Overdraft Facility Transferee], and/or (iii) accountants, attorneys
or other professionals retained by such parties whether delivered by either
Borrower or otherwise shall be kept strictly confidential by such recipients,
and shall be used solely in connection with its consideration of [an assignment/
a transfer/a participation/the appointment of a new Overdraft Provider] in
respect of the Credit Agreement; PROVIDED, that Prospective
[assignee)Transferee/participant/Overdraft Facility Transferee] may, in any
event, disclose any such information:
(i) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for discovering
documents or otherwise; or
(ii) if required by any law or regulation having the force of law; or
(iii) pursuant to any requirement or request of any fiscal,
monetary, tax, governmental or other competent authority; or
(iv) to its auditors, legal or other professional advisors; or
(v) which is in the public domain,
and unless specifically prohibited by applicable law or court order, the
prospective assignee/Transferee/or participant shall notify the Borrowers of
any disclosure pursuant to paragraphs (i), (ii) and (iii). In no event shall
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
be obligated or required to return any materials furnished by either Borrower.
This deed shall be governed by and construed and enforced in accordance
with, the laws of England.
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
hereby irrevocably agrees for the benefit of the Borrower that the courts of
England shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in connection
with this deed and, for such purposes, irrevocably submits to the jurisdiction
of such courts.
Prospective [assignee/Transferee/participant/Overdraft Facility Transferee]
hereby irrevocably waives any objection which it might now or hereafter have to
the courts of England being nominated as the forum to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise out of
or in connection with this deed and agrees not to claim that any such court is
not a convenient or appropriate forum.
The submission to the jurisdiction of the courts of England shall not (and
shall not be construed so as to) limit the right of the Borrower to take
proceedings against Prospective [assignee/Transferee/participant/Overdraft
Facility Transferee] in any other court of competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdiction preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
IN WITNESS WHEREOF, this confidentiality agreement has been executed as a
deed by the Prospective [assignee/Transferee/participant/Overdraft Facility
Transferee] delivered on the date specified below.
____________________________, 19___
EXECUTED AND DELIVERED AS A DEED
BY [INSERT NAME IN BLOCK CAPITALS
OF PROSPECTIVE ASSIGNEE/TRANSFEREE/PARTICIPANT/OVERDRAFT
FACILITY TRANSFEREE]
Name:
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Title:
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Name:
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Title:
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TABLE OF CONTENTS
Page
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1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. THE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 10
5. NATURE OF LENDERS' OBLIGATIONS . . . . . . . . . . . . . . . . . . . 10
6. UTILIZATION OF THE FACILITY . . . . . . . . . . . . . . . . . . . . 10
7. ISSUE OF LETTERS OF CREDIT AND CONTRACT GUARANTEES . . . . . . . . . 13
8. INDEMNITY (INCLUDING BANK INDEMNITY FOR SHORT-TERM ADVANCES) . . . . 14
9. LETTER OF CREDIT AND CONTRACT GUARANTEE COMMISSIONS AND FEES . . . . 15
10. MAKING OF ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . . 16
11. INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12. REPAYMENT OF ADVANCES . . . . . . . . . . . . . . . . . . . . . . . 18
13. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
14. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15. INCREASED COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . 20
16. ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17. MITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES . . . . . . . . . . 24
19. ACCELERATION EVENT . . . . . . . . . . . . . . . . . . . . . . . . . 24
20. DEFAULT INTEREST AND INDEMNITIES . . . . . . . . . . . . . . . . . . 25
21. CURRENCY OF ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . 26
22. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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TABLE OF CONTENTS
(Continued)
Page
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23. SET-OFF AND NETTING OF PAYMENTS . . . . . . . . . . . . . . . . . . 27
24. REDISTRIBUTION OF PAYMENTS . . . . . . . . . . . . . . . . . . . . . 28
25. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
26. COSTS AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . 29
27. THE AGENTS AND THE LENDERS . . . . . . . . . . . . . . . . . . . . . 30
28. BENEFIT OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 34
29. ASSIGNMENTS AND TRANSFERS BY THE BORROWER . . . . . . . . . . . . . 34
30. ASSIGNMENTS AND TRANSFERS BY BANKS . . . . . . . . . . . . . . . . . 34
31. DISCLOSURE OF INFORMATION . . . . . . . . . . . . . . . . . . . . . 37
32. CALCULATIONS AND EVIDENCE OF DEBT . . . . . . . . . . . . . . . . . 38
33. REMEDIES AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . 39
34. PARTIAL INVALIDITY . . . . . . . . . . . . . . . . . . . . . . . . . 39
35. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
36. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
37. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
38. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
39. WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
The Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Form of Transfer Certificate . . . . . . . . . . . . . . . . . . . . 43
Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . 46
Utilization Request . . . . . . . . . . . . . . . . . . . . . . . . 47
Timetables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Mandatory Liquid Asset Costs Rate Formula . . . . . . . . . . . . . 49
Form of Overdraft Provider Transfer Certificate . . . . . . . . . . 51
SIGNATORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
FORM OF CONFIDENTIALITY AGREEMENT . . . . . . . . . . . . . . . 65
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