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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K/A
AMENDMENT NO. 1
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[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED EFFECTIVE OCTOBER 7, 1996]
FOR THE FISCAL YEAR ENDED MARCH 31, 1998
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 0-20287
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NU-KOTE HOLDING, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
16-1296153
DELAWARE (I.R.S. EMPLOYER-
(STATE OR OTHER JURISDICTION OF IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
200 BEASLEY DRIVE, FRANKLIN, 37064
TENNESSEE (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
Registrant's telephone number, including area code: (615) 794-9000
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Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
CLASS A COMMON STOCK, $0.01 PAR VALUE
PREFERRED SHARE PURCHASE RIGHTS
(Title of Class)
----------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [_]
As of June 22, 1998, there were 21,775,302 shares of Class A Common Stock
outstanding (with one Preferred Share Right attached to each) and the
aggregate market value of the voting stock held by non-affiliates of the
registrant was $5,002,962. Solely for purposes of computing the aggregate
market value of the Class A Common Stock, the share ownership of all directors
and executive officers, and their family members, and of all persons holding
more that 10% of the Registrant's outstanding shares has been excluded.
DOCUMENTS INCORPORATED BY REFERENCE
None.
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The registrant hereby amends Item 14 of its Annual Report on Form 10-K for
the fiscal year ended March 31, 1998, as set forth on the pages attached
hereto.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS SCHEDULE, AND REPORTS ON FORM 8-K
(a)(1) Reference is made to the Index to Consolidated Financial Statements
appearing at page F-1 of this report.
(2)Reference is made to the Index to Financial Statement Schedules
appearing at page S-1 of this report.
(3)Exhibits.
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<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
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<C> <S> <C>
3.1 --Amended and Restated Certificate of Incorporation of
Nu-kote Holding, Inc. ("Holding") (incorporated herein
by reference to Exhibit 3(a) of Amendment No. 1, as
filed with the Commission on August 24, 1992 ("Amendment
No. 1") to Holding's Registration Statement on Form S-1
(File No. 33-481012); as filed with the Commission on
May 22, 1992 ("Holding's 1992 Form S-1")).
3.2 --Certificate of Amendment to Amended and Restated
Certificate of Incorporation, dated August 4, 1994
(incorporated herein by reference to Exhibit 3(a) to
Holding's Annual Report on Form 10-K for the year ended
March 31, 1995 (File No. 0-20287) ("Holding's 1995 Form
10-K")).
3.3 --Certificate of Designations of Holding, dated May 19,
1994 (incorporated herein by reference to Exhibit 3.1(b)
to Holding's 1995 Form 10-K).
3.4 --Certificate of Increase of Holding, dated February 10,
1995 (incorporated herein by reference to Exhibit 3.1(c)
to Holding's 1995 Form 10-K).
3.5 --By-Laws of Holding (incorporated herein by reference to
Exhibit 3.2 to Holding's 1995 Form 10-K).
4.1 --Form of Stock Certificate for Class B Common Stock, par
value $.01 per share (incorporated herein by reference
to Exhibit 4(d) to Amendment No. 2 to Holding's 1992
Form S-1).
4.2 --Rights Agreement, dated as of May 19, 1994 between
Holding and Chemical Bank (incorporated herein by
reference to Exhibit 1 of Holding's Form 8-A, as filed
with the Commission on May 20, 1994).
4.3 --Amendment No. 1 to Rights Agreement, dated as of
November 15, 1994, between Holding and Chemical Bank
(incorporated herein by reference to Exhibit 2 of
Holding's Form
8-A/A, as filed with the Commission on February 24,
1995).
4.4 --Registration Rights Agreement, dated as of February 24,
1995, between Holding, Pelikan, Pelikan, Inc.,
Caribonum, Limited, Pelikan GmbH and Pelikan
International Handelsgesellschaft mbH & Co, KG
(Hannover) (incorporated herein by reference to Exhibit
E to Annex A to Holding's Definitive Proxy Statement, as
filed with the Commission on February 10, 1995
("Holding's 1995 Proxy Statement").
10.1 --Second Amended an Restated Credit Agreement dated as of
July 31, 1997 by and among Nu-kote International, Inc.
as borrower, Nu-kote Holding, Inc. as Guarantor, the
lenders listed on the signature page thereto as Lenders,
and NationsBank of Texas, N.A. as Administrative Agent
and Collateral Agent (incorporated herein by reference
to Exhibit 10.1 of Holding's June 1997 10-Q).
10.2 --(Pounds)6,275,000--Third Amended and Restated Revolving
Credit Agreement dated July 31, 1997 between Pelikan
Scotland Limited as borrower, Barclays Bank PLC as
Agent, NationsBank of Texas, N.A. as Collateral Agent
and NationsBank of Texas, N.A. as Documentation Agent
and Others (incorporated herein by reference to Exhibit
10.2 of Holding's June 1997 10-Q).
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
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<C> <S> <C>
10.3 --Patent Assignment and License Agreement dated as of
January 16, 1987, between Unisys and NKI (incorporated
herein by reference to Exhibit 10(c) of Holding's 1992
Form S-1).
10.4 --CHF50,000,000--Third Amended and Restated Revolving
Credit Agreement dated July 31, 1997 between Pelikan
Produktions AG and Pelikan Hardcopy (International) AG
as borrower, Barclay Bank PLC as Agent, NationsBank of
Texas, N.A. as Collateral Agent and NationsBank of
Texas, N.A. as Documentation Agent and Others
(incorporated herein by reference to Exhibit 10.3 of
Holding's June 1997 10-Q).
10.5 --Trademark and Service Mark Assignment, dated as of
January 16, 1987, between Unisys and NKI (incorporated
herein by reference to Exhibit 10(d) of Holding's 1992
Form S-1).
10.6 --Warrant Agreement between Nu-kote Holding, Inc. and the
Warrantholders on the signature page thereof, dated as
of July 31, 1997 (incorporated herein by reference to
Exhibit 10.4 of Holding's June 1997 10-Q).
10.7 --Registration Rights Agreement dated as of July 31, 1997
by and among Nu-kote Holding, Inc. and the
Warrantholders listed on the signature page thereto
(incorporated herein by reference to Exhibit 10.5 of
Holding's June 1997 10-Q).
10.8 --IBM Cross License, dated as of April 8, 1988, between
International Business Machines Corporation and NKI
(incorporated herein by reference to Exhibit 10(rrr) of
Holding's 1992 Form S-1).
10.9 --Technical Information and License Agreements, dated as
of June 23, 1987, between NKI and each of Interfas S.A.
and N-K International Limited (incorporated herein by
reference to Exhibit 10(sss) of Holding's 1992 Form
S-1).
10.10 --Stock Purchase Agreement, dated as of February 24,
1992, between NKI , Robert W. Blair and John Ridenour
(incorporated herein by reference to Exhibit 10(uuu) of
Holding's 1992 Form S-1).
10.11 --Escrow Agreement, dated February 24, 1992, among NKI,
Robert W. Blair, John Ridenour and the Manufacturers
Hanover Trust Company, as Escrow Agent (incorporated
herein by reference to Exhibit 10(xxx) of Holding's 1992
Form S-1).
10.12 --Indemnification Agreement, dated as of May 18, 1992,
among NKI, Holding, Clayton, Dubilier & Rice, Inc., Fund
II and Clayton & Dubilier Associates II Limited
Partnership, a Connecticut limited partnership
(incorporated herein by reference to Exhibit 10(dddd) of
Holding's 1992 Form S-1).
10.13 --Nu-kote International, Inc. Retirement Income Plan
(incorporated herein by reference to Exhibit 10(eeee) of
Holding's 1992 Form S-1).
10.14 --Nu-kote Holding, Inc. Stock Option Plan (incorporated
herein by reference to Exhibit 10(ffff) of Holding's
1992 Form S-1).
10.15 --Nu-kote International, Inc. Employee Savings Plan
(incorporated herein by reference to Exhibit 10(iiii) of
Holding's 1992 Form S-1).
10.16 --Management Stock Option Agreement, between Holding and
each of the grantees named on the schedule attached
thereto (incorporated herein by reference to Exhibit
10.34 to Holding's Registration Statement on Form S-1
(File No. 33-61668), as filed with the Commission on
April 26, 1993) ("Holding's 1993 Form S-1").
10.17 --Lease, dated as of February 18, 1993, between Frank
DiMino, as Lessor and NKI, as Lessee, (incorporated
herein by reference to Exhibit 10.56 to Amendment No. 1,
as filed with the Commission on May 18, 1993 ("Amendment
No. 1"), to Holding's 1993 Form S-1).
</TABLE>
34
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<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
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10.18 --Management Stock Option Agreement, dated as of June 16,
1993, between Holding and each of the persons named on
the schedule attached hereto (incorporated herein by
reference to Exhibit 3.2 to Holding's Annual Report on
Form 10-K for the year ended March 31, 1993 (File No.
0-20287)).
10.19 --Asset and Stock Purchase Agreement, dated as of
November 15, 1994, between Holding and Pelikan Holding
AG ("Pelikan") (incorporated herein by reference to
Annex A to Holding's February 1995 Proxy Statement).
10.20 --Amendment to Asset and Stock Purchase Agreement, dated
as of February 6, 1995, between Holding and Pelikan
(incorporated herein by reference to Annex C to
Holding's February 1995 Proxy Statement).
10.21 --Trademark License Agreement, dated as of February 24,
1995 between Pelikan, PIH and Pelikan GmbH (Hannover),
on the one hand, and Holding, on the other hand
(incorporated herein by reference to Exhibit B to Annex
A to Holding's February 1995 Proxy Statement).
10.22 --Credit Agreement, dated as of February 24, 1995, among
NKI, Holding, Barclays Bank PLC, documentation agent,
NationsBank of Texas, N.A., collateral agent and the
lender parties thereto (incorporated herein by reference
to Exhibit 4.3.37 to Holding's Current Report on Form
8-K, dated February 24, 1995).
10.23 --Nu-kote Holding, Inc. Senior Management Stock
Appreciation Rights Plan, effective
June 22, 1995 (incorporated herein by reference to
Exhibit 10.46 to Holding's 1995 Form 10-K).
10.24 --Form of Appreciation Right Notification (relating to
Exhibit 10.43) (incorporated herein by reference to
Exhibit 10.47 to Holding's 1995 Form 10-K).
10.25 --Nu-kote Holding 1992 Stock Option Plan, as amended and
restated on August 1, 1995 (incorporated herein by
reference to Exhibit 10.43 to Holding's Annual Report on
Form 10-K for the year ended March 31, 1996 (File No.
0-20287) ("Holding's 1996 Form 10-K")).
10.26 --Amendment, dated as of January 24, 1996, to Nu-kote
Holding, Inc. 1992 Stock Option Plan, as amended and
restated (incorporated herein by reference to Exhibit
10.44 to Holding's 1996 Form 10-K).
10.27 --Nu-kote Holding, Inc. Senior Management Stock
Appreciation Rights Plan, as amended and restated
September 27, 1996 (incorporated herein by reference to
Exhibit 10.41 to Holding's September 1996 10-Q).
10.28 --Form of Appreciation Right Notification (relating to
Exhibit 10.48 (incorporated herein by reference to
Exhibit 10.42 to Holding's September 1996 10-Q).
10.29 --Nu-kote Holding, Inc. 1992 Stock Option Plan, as
amended and restated September 27, 1996 (incorporated
herein by reference to Exhibit 10.43 to Holding's
September 1996 10-Q).
10.30 --Nu-kote Holding, Inc. Deferred Stock Option Plan, as
amended and restated September 27, 1996 (incorporated
herein by reference to Exhibit 10.44 to Holding's
September 1996 10-Q).
10.31 --First Amendment to Amended and Restated Credit
Agreement, dated as of February 7, 1997, among Holding,
NKI, the lenders signatory thereto, Barclays Bank PLC,
as documentation agent and NationsBank of Texas, N.A.,
as administrative agent and collateral agent
(incorporated herein by reference to Exhibit 10.36a to
Holding's Quarterly Report on Form 10-Q for the quarter
ended December 27, 1996 (File No. 0-20287).
</TABLE>
35
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<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
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<C> <S> <C>
10.32 --Second Amendment to Second Amended and Restated Credit
Agreement and Waiver dated March 30, 1998.
10.33 --Third Amendment to Second Amended and Restated Credit
Agreement, Waiver and Amendment to Certain Eurocurrency
Loan Documents dated April 1, 1998.
10.34 --Fourth Amendment to Second Amended and Restated Credit
Agreement, Waiver and Amendment to Certain Eurocurrency
Loan Documents dated May 29, 1998.
10.35 --Management consulting agreement with Glass &
Associates, Inc. (incorporated herein by reference to
Exhibit 10.7 to Holding's December 1997 10-Q).
10.36 --Daniel Kerrane employment contract dated May 6, 1998.
10.37 --David Brigante severance agreement dated March 9, 1998.
10.38 --Form of Employee Retention Agreement.
21.1 --Subsidiaries of Holding.
23.1 --Consent of Coopers & Lybrand L.L.P.
27 --Financial Data Schedule
</TABLE>
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(b) The Registrant filed no reports on Form 8-K during the quarterly period
ended March 31, 1998.
36
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SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Amendment No. 1 to
be signed on its behalf by the undersigned, thereunto duly authorized.
Date: July 2, 1998
NU-KOTE HOLDING, INC.
/s/ Shaun K. Donnellan
By: _________________________________
Shaun K. Donnellan
President and Chief Executive
Officer
<PAGE>
EXHIBIT 10.33
THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT, WAIVER, AND AMENDMENT
TO CERTAIN EUROCURRENCY LOAN DOCUMENTS
--------------------------------------
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
WAIVER, AND AMENDMENT TO CERTAIN EUROCURRENCY LOAN DOCUMENTS ("Amendment") is
dated as of the 1st day of April, 1998, and entered into among NU-KOTE HOLDINGS,
INC., a Delaware corporation ("Holding"), NU-KOTE INTERNATIONAL, INC., a
Delaware corporation ("Company"), the Lenders and Eurocurrency Lenders
signatory hereto, BARCLAYS BANK PLC, in its capacity as documentation agent
("Documentation Agent"), NATIONSBANK OF TEXAS, N.A., a national banking
association, as administrative agent and collateral agent (in such capacities,
"Agent"), and BARCLAYS BANK PLC and NATIONSBANK OF TEXAS, N.A., in their
capacity as Agent, Fronting Bank and Overdraft Provider, and Collateral Agent
and Documentation Agent, respectively, under the UK Facility Agreement and the
Swiss Facility Agreement referenced herein.
WITNESSETH:
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WHEREAS, Holding, Company, Lenders, Documentation Agent and Agent entered
into a Second Amended and Restated Credit Agreement, dated as of July 31, 1997,
as amended by First Amendment to Second Amended and Restated Credit Agreement
dated as of November 28, 1997, and by Second Amendment to Second Amended and
Restated Credit Agreement, dated as of December 31, 1997 (as amended, the
"Credit Agreement");
WHEREAS, Holding and Company have requested that Lenders (i) defer a
portion of the mandatory $5,000,000 reduction in the commitments of the Lenders
to lend from April 1, 1998, until July 1, 1998, and (ii) waive during the period
starting on December 31, 1997, to May 29, 1998, inclusive (the "Waiver Period"),
Holding's and the Company's failure to comply with certain financial covenants
set forth in the Credit Agreement, and
WHEREAS, Lenders and Agent have agreed to grant the requests of Holding and
Company and the parties hereto have agreed to modify the Credit Agreement and
certain Eurocurrency Loan Documents upon the terms and conditions set forth
below.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions. Unless specifically defined or redefined below,
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
SECTION 2. Waivers. Subject to the terms and conditions hereof, Lenders
hereby waive, but only during the Waiver Period, the Specified Defaults
(hereinafter defined); provided, however, that Lenders' waiver of the Specified
Defaults and their rights and remedies as a result of the occurrence thereof
shall not constitute and shall not be deemed to constitute a waiver of any other
Event of Default, whether arising as a result of further violations of any
provision of the Credit
<PAGE>
Agreement previously violated by Holding or Company, or a waiver of any rights
and remedies arising as a result of such other Events of Default. As used
herein, "Specified Defaults" shall mean the failure of Holding and Company to
observe (i) the covenants set forth in Section 6.6A, Section 6.6B, Section 6.6C,
Section 6.6E, and Section 6.6H of the Credit Agreement for the fiscal quarters
ended December 31, 1997, and March 31, 1998, and (ii) the covenants set forth in
Section 6.6F and Section 6.6G for the months ended December 31, 1997, January
31, 1998, February 28, 1998, March 31, 1998, and April 30, 1998. At the end of
the Waiver Period, the waiver of the Specified Defaults will automatically
terminate.
SECTION 3. Amendments to Credit Agreement. Subject to the terms and
conditions hereof, the provisions of the Credit Agreement enumerated below are
amended as follows:
(a) Section 2.4A(iii)(a) of the Credit Agreement is amended to read as follows:
On April 30, 1998, May 29, 1998, June 30, 1998, July 1, 1998, and October
1, 1998, prepay an aggregate principal amount of the Revolving Credit Loans
in the amount, if any, necessary to reduce the sum of the aggregate
principal amount of all Revolving Credit Loans on such date plus the Letter
of Credit Usage on such date, to an amount which does not exceed the
aggregate Revolving Credit Commitments on such date. On each such date the
Company shall also prepay all accrued and unpaid interest on the principal
amount so prepaid.
(b) Section 2.4E(ii) of the Credit Agreement is amended to read as follows:
In addition to the reductions specified in subsection 2.4E(i) above, the
Revolving Credit Commitments shall automatically and permanently reduce by
the amount of $1,000,000 on April 30, 1998, by the amount of $4,000,000 on
May 29, 1998, and by the amount of $2,500,000 on each of July 1, 1998, and
October 1, 1998.
(c) Section 5.1 of the Credit Agreement is amended to add thereto subsection
(xv) to read as follows:
(xv) As soon as practicable and in any event within thirty (30) days
after the last day of each calendar month (including the twelfth calendar
month of each Fiscal Year) thereafter beginning with the calendar month
ending March 31, 1998, consolidated balance sheets of Greif and its
Subsidiaries, of MIT and its Subsidiaries, of Pelikan Hardcopy and its
Subsidiaries, of Pelikan Scotland and its Subsidiaries, and of Produktions
and its Subsidiaries, each as at the end of such period, and the related
consolidated statement of income, stockholders equity and cash flow of such
Persons for such month, all in reasonable detail and certified by the Chief
Financial Officer, Corporate Controller or Treasurer of Holding or such
Person to fairly present, in all material respects, the financial condition
of such Persons as at the date indicated and the results of their
operations for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments, and except that such financial
statement need not contain notes, but shall be prepared substantially in
conformity with GAAP, together with such additional information as Agent
2
<PAGE>
may reasonably request including without limitation monthly reports (both
hard copies and copies on disks) of the accounts receivable and inventory
of Produktions and Pelikan Hardcopy, and copies of annual statutory reports
of such Persons filed in their respective jurisdictions of organization.
(d) Section 6.3(vi) of the Credit Agreement is amended to read as follows:
On and after December 31, 1997, through and including May 29, 1998, Company
and its Domestic Subsidiaries may not make further Investments in
(including intercompany loans to) or otherwise transfer funds or other
assets to Eurocurrency Borrowers for any purpose, except for fundings to or
for the benefit of MIT if the prior written consent of Required Lenders to
such fundings has been obtained, and trade payments made on account of
inventory purchased in the ordinary course of business; furthermore (A)
with respect to the aggregate principal amount of all such Investments in
all such Eurocurrency Borrowers, Company or any such Domestic Subsidiary,
as appropriate, shall maintain a ledger recording all such Investments in
and intercompany loans made pursuant to this subsection 6.3(vi), and such
ledger shall be available for inspection at any Lender's request and (B)
all intercompany loans made pursuant to this subsection 6.3(vi) shall be
evidenced by promissory notes which shall be on terms and conditions
satisfactory to Agent, including collateral, and which shall be pledged and
delivered to Agent pursuant to the Collateral Documents;
(e) Section 6.3(vii) of the Credit Agreement is amended to read as follows:
On and after December 31, 1997, through and including May 29, 1998, Company
and its Domestic Subsidiaries may not make further Investments in
(including intercompany loans to) or otherwise transfer funds or other
assets to Latin American Subsidiaries for any purpose; furthermore (A) with
respect to the aggregate principal amount of all such Investments
outstanding on December 31, 1997, Company or any such Domestic Subsidiary,
as appropriate, shall maintain a ledger recording all such Investments in
and intercompany loans made pursuant to this subsection 6.3(vii) prior to
December 31, 1997, and such ledger shall be available for inspection at any
Lender's request and (B) all intercompany loans made pursuant to this
subsection 6.3(vii) shall be evidenced by promissory notes which shall be
on terms and conditions satisfactory to Agent, including collateral, and
which shall be pledged and delivered to Agent pursuant to the Collateral
Documents;
(f) Section 6.3 of the Credit Agreement is amended to add at the end thereof
the following sentence:
Notwithstanding anything in this Agreement or the Eurocurrency Loan
Documents to the contrary, Holding and its Subsidiaries shall not make any
intercompany subordinated loans, amounts or advances, or enter into any
subordination agreements with respect to intercompany loans, amounts or
advances.
SECTION 4. Amendments to Swiss Facility Agreement, U.K. Facility Agreement,
and Certain Related Documents. Effective as of the date hereof, the Swiss
Facility Agreement and the
3
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U.K. Facility Agreement are hereby amended to provide that, notwithstanding
anything to the contrary in the Swiss Facility Agreement or the U.K. Facility
Agreement, the obligations of Barclays Bank PLC as Overdraft Provider (as
therein defined) are terminated, and no further Short-Term Advances (as defined
therein) shall be made by Barclays Bank PLC as Overdraft Provider. Effective as
of the date hereof, Produktions and Pelikan Hardcopy hereby waive the
requirements of the Inventory Pledge Agreement, the Pelikan Hardcopy
International AG Assignment Agreement, and the Pelikan Produktions AG Assignment
Agreement (as such terms are defined in the Swiss Facility Agreement) that
acceleration of the obligations secured shall occur before (a) the Agent may
cause to be taken the actions described in Section 2.4 of the Pelikan Hardcopy
International AG Assignment Agreement and the Pelikan Produktions AG Assignment
Agreement, and (b) the Agent may provide the instructions regarding use and
disposition of Inventory under and as defined in Section 2.4 and Section 2.5 of
the Inventory Pledge Agreement, so long as the Agent provides to Pelikan
Hardcopy and Produktions, as applicable, written notice of the occurrence of a
default prior to taking such action.
SECTION 5. Consent to Sale of Nu-kote de Colombia S.A. and its Subsidiaries
and Retention of Certain Net Cash Proceeds Thereof. Subject to the terms and
conditions hereof, Lenders hereby consent to the sale of the shares of Nu-kote
de Colombia S.A., so long as the gross cash proceeds thereof are not less than
$300,000, the net cash proceeds thereof are delivered to Lenders in prepayment
of the Revolving Credit Loans (which amount shall constitute a permanent
reduction in the Revolving Credit Commitments), all liabilities due and owing in
connection with the business to which such assets relate are assumed by the
purchaser thereof, such sale occurs on or before April 30, 1998, any promissory
note received in connection with such sale is delivered to the Lenders as
Collateral, and such sale is otherwise upon terms reasonably satisfactory to
Agent and heretofore disclosed to Lenders.
SECTION 6. Releases. In consideration of Lenders' agreements herein and
certain other good and valuable consideration, Holding and Company each hereby
expressly acknowledge and agree that neither of them has any setoffs,
counterclaims, adjustments, recoupments, defenses, claims or actions of any
character, whether contingent, non-contingent, liquidated, unliquidated, fixed,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, known or unknown, against any Lender, Documentation Agent or Agent or
any grounds or cause for reduction, modification or subordination of the
Obligations or any liens or security interests of any Lender or the Collateral
Agent. To the extent Holding or Company may possess any such setoffs,
counterclaims, adjustments, recoupments, claims, actions, grounds or causes,
each of Holding and Company hereby waives, and hereby releases each Lender,
Documentation Agent and Agent from, any and all of such setoffs, counterclaims,
adjustments, recoupments, claims, actions, grounds and causes, such waiver and
release being with full knowledge and understanding of the circumstances and
effects of such waiver and release and after having consulted counsel with
respect thereto.
SECTION 7. Conditions Precedent. This Amendment shall not be effective
until all corporate actions of Company taken in connection herewith and the
transactions contemplated hereby shall be satisfactory in form and substance to
Documentation Agent, Agent and Lenders, and each of the following conditions
precedent shall have been satisfied:
4
<PAGE>
(a) All fees and expenses, including legal and other professional fees
and expenses incurred on or prior to the date of this Amendment by Agent or
any Lender, including, without limitation, the fees and expenses of U.S.
and foreign counsel and title insurance expenses, shall have been paid to
the extent that same have been billed.
(b) Agent and each Lender shall have received each of the following,
in form and substance satisfactory to Agent, Lenders and Agent's counsel in
their sole and absolute discretion:
(1) a certificate of Holding and Company certifying (i) as to
the accuracy, after giving effect to this Amendment, of the
representations and warranties set forth in Section 4 of the Credit
Agreement, the other Loan Documents and in this Amendment, and (ii)
that there exists no Potential Event of Default or Event of Default,
after giving effect to this Amendment, and the execution, delivery and
performance of this Amendment will not cause a Potential Event of
Default or Event of Default;
(2) such other documents, instruments, and certificates, in form
and substance reasonably satisfactory to Lenders, as Lenders shall
deem necessary or appropriate in connection with this Amendment and
the transactions contemplated hereby, including without limitation
copies of resolutions of the boards of directors of each of Holding,
Company, and each Eurocurrency Borrower authorizing the transactions
contemplated by this Amendment; and
(3) a favorable opinion of Swiss counsel to Pelikan Hardcopy and
Produktions with respect to the authority of such Persons to enter
into the transactions contemplated by this Amendment and such other
matters as Agent or its counsel may reasonably request.
(c) All accrued and unpaid interest and fees due with respect to the
Revolving Credit Loans and the Eurocurrency Loans through and including
March 31, 1998, shall have been paid in full.
(d) Company shall have delivered or caused to be delivered to Agent
the items listed on Schedule 1 hereto in form and substance satisfactory to
Agent and its counsel.
SECTION 8. Conditions Subsequent. As conditions subsequent to the
effectiveness of this Amendment, Company shall deliver to Agent, in form and
substance reasonably satisfactory to Agent and its counsel, on or before each of
the dates indicated on Schedule 2 hereto, the items provided on Schedule 2 to be
delivered on or before such date. Upon Company's failure to make any such
delivery, the waiver of the Specified Defaults provided in this Amendment will
automatically terminate and be of no further force and effect.
SECTION 9. Representations and Warranties; Ratifications. Holding and
Company represent and warrant to Lenders, Documentation Agent and Agent that (a)
this Amendment
5
<PAGE>
constitutes their legal, valid, and binding obligations, enforceable in
accordance with the terms hereof (subject as to enforcement of remedies to any
applicable bankruptcy, reorganization, moratorium, or other laws or principles
of equity affecting the enforcement of creditors' rights generally), (b) there
exists no Potential Event of Default or Event of Default under the Credit
Agreement after giving effect to this Amendment, (c) their representations and
warranties set forth in the Credit Agreement and other Loan Documents are true
and correct on the date hereof after giving effect to this Amendment, (d) they
have complied with all agreements and conditions to be complied with by them
under the Credit Agreement and the other Loan Documents by the date hereof after
giving effect to this Amendment, and (e) the Credit Agreement, as amended
hereby, and the other Loan Documents remain in full force and effect. Except as
expressly modified by this Amendment, the terms and provisions of the Credit
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Except as provided herein, this Amendment
shall not constitute an amendment or waiver of any terms and provisions of the
Credit Agreement and other Loan Documents nor a waiver of the rights of the
Lenders, Documentation Agent and Agent to insist upon compliance with each term,
covenant, condition or provision of the Credit Agreement and other Loan
Documents.
SECTION 10. Expenses of Lenders. Holding and Company hereby jointly and
severally agree to pay on demand all reasonable costs and expenses incurred by
Agent or any Lender, including costs and fees of counsel to Agent or any Lender
and other professional fees and expenses, in connection with the preparation,
negotiation, review and execution of this Amendment and the other Loan Documents
executed pursuant hereto and any and all amendments, modifications and
supplements thereto. Holding and Company hereby confirm their obligation to pay
promptly the costs and expenses for which they are obligated pursuant to Section
10.3 of the Credit Agreement.
SECTION 11. Further Assurances. Holding and Company shall execute and
deliver such further agreements, documents, instruments, and certificates in
form and substance satisfactory to Agent, as Agent or any Lender may deem
necessary or appropriate in connection with this Amendment.
SECTION 12. Representations and Consents of Eurocurrency Borrowers and
Eurocurrency Lenders. Each Eurocurrency Borrower and Eurocurrency Lender by its
execution below consents and agrees to this Amendment and agrees that the
Eurocurrency Credit Agreement or Eurocurrency Credit Agreements to which it is a
party are and shall continue to be in full force and effect and are hereby
ratified and confirmed in all respects except that, upon the effectiveness of
and on and after the date of this Amendment each reference to the Credit
Agreement, "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment. Each Eurocurrency Borrower agrees that the
collateral described in the Eurocurrency Security Documents to which it is a
party shall continue to secure the payment of the indebtedness therein
described. Each Eurocurrency Borrower represents and warrants to Lenders,
Documentation Agent and Agent that (a) this Amendment constitutes their legal,
valid, and binding obligations, enforceable in accordance with the terms hereof
(subject as to enforcement of remedies to any applicable bankruptcy,
reorganization, moratorium, or other laws or principles of equity affecting the
enforcement of creditors' rights generally), (b) the representations and
warranties set forth in their respective Eurocurrency Credit Agreement and other
6
<PAGE>
Eurocurrency Loan Documents are true and correct on the date hereof after giving
effect to this Amendment, and (c) they have complied with all agreements and
conditions to be complied with by them under their respective Eurocurrency
Credit Agreement and the other Eurocurrency Loan Documents by the date hereof
after giving effect to this Amendment.
SECTION 13. Counterparts. This Amendment and the other Loan Documents may
be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought. Telecopies of
signatures shall be binding and effective as originals.
SECTION 14. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
HOLDING AND COMPANY EACH HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR OTHERWISE)
ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY
RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE
SITTING WITHOUT A JURY.
SECTION 15. GOVERNING LAW. (A) THIS AGREEMENT AND ALL DOMESTIC LOAN
DOCUMENTS SHALL BE DEEMED CONTRACTS MADE UNDER THE LAWS OF TEXAS AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF TEXAS,
EXCEPT TO THE EXTENT (1) FEDERAL LAWS GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT AND INTERPRETATION OF ALL OR ANY PART OF THIS AGREEMENT AND ALL
DOMESTIC LOAN DOCUMENTS OR (2) STATE LAW GOVERNS UCC COLLATERAL INTERESTS FOR
PROPERTIES OUTSIDE THE STATE OF TEXAS. WITHOUT EXCLUDING ANY OTHER
JURISDICTION, HOLDING AND COMPANY EACH AGREES THAT THE COURTS OF TEXAS WILL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH.
(B) HOLDING AND COMPANY EACH HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL
PROCESS UPON IT. IN ADDITION, HOLDING AND COMPANY EACH AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY REGISTERED MAIL (RETURN RECEIPT REQUESTED)
DIRECTED TO IT AT ITS ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON RECEIPT BY IT. NOTHING IN
THIS SECTION SHALL AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 16. ENTIRE AGREEMENT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
7
<PAGE>
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS AMENDMENT
SHALL CONSTITUTE A LOAN DOCUMENT.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.]
8
<PAGE>
IN WITNESS WHEREOF, this Amendment is executed as of the date first set
forth above.
Holding: NU-KOTE HOLDING, INC.
By:
------------------------------------------
Richard A. Larsen
Senior Vice President
Company: NU-KOTE INTERNATIONAL, INC.
By:
------------------------------------------
Richard A. Larsen
Senior Vice President
Agent: NATIONSBANK OF TEXAS, N.A.,
By:
------------------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
Documentation Agent: BARCLAYS BANK PLC
By:
------------------------------------------
Name:
Title:
Lenders and Eurocurrency NATIONSBANK OF TEXAS, N.A.
Lenders:
By:
------------------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
<PAGE>
BARCLAYS BANK PLC
By:
------------------------------------------
Name:
Title:
ABN AMRO BANK, N.V.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
<PAGE>
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
SOCIETE GENERALE
By:
------------------------------------------
Name:
Title:
<PAGE>
OVERDRAFT PROVIDER AND BARCLAYS BANK PLC
FRONTING BANK:
By:
------------------------------------------
Name:
Title:
AGENT UNDER EUROCURRENCY BARCLAYS BANK PLC
CREDIT AGREEMENTS:
By:
------------------------------------------
Name:
Title:
COLLATERAL AGENT AND NATIONSBANK OF TEXAS, N.A.
DOCUMENTATION AGENT
UNDER EUROCURRENCY
CREDIT AGREEMENTS:
By:
------------------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
ADDITIONAL EUROCURRENCY NATIONSBANK, N.A.
LENDERS:
By:
------------------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
DEUTSCHE BANK AG LONDON BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
<PAGE>
CREDIT LYONNAIS, S.A.
By:
------------------------------------------
Name:
Title:
<PAGE>
CONSENTED AND AGREED TO BY THE UNDERSIGNED IN THEIR CAPACITY AS EUROCURRENCY
BORROWERS:
PELIKAN SCOTLAND LIMITED
By:
----------------------------------
Name:
Title:
PELIKAN PRODUKTIONS AG
By:
----------------------------------
Name:
Title:
PELIKAN HARDCOPY (INTERNATIONAL) AG
By:
----------------------------------
Name:
Title:
<PAGE>
CONSENT
Each of the undersigned, as Guarantors under a "Subsidiary Guaranty" and as
grantors under one or more "Subsidiary Security Documents" (as such terms are
defined in the Credit Agreement referred to in the foregoing Amendment), each
hereby consents and agrees to the foregoing Amendment and agrees that (i) each
Subsidiary Guaranty and Subsidiary Security Document is and shall continue to be
in full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of and on and after the date of such
Amendment each reference to the Credit Agreement, "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by such Amendment, and (ii) the
collateral described in the Subsidiary Security Documents shall continue to
secure the payment of the indebtedness therein described.
FUTURE GRAPHICS, INC.
By:
--------------------------------------
Richard A. Larsen
Vice President
INTERNATIONAL COMMUNICATION
MATERIALS, INC.
By:
--------------------------------------
Richard A. Larsen
Vice President
NU-KOTE IMAGING INTERNATIONAL, INC.
By:
--------------------------------------
Richard A. Larsen
Vice President
NU-KOTE IMPERIAL, LTD.
By:
--------------------------------------
Richard A. Larsen
Vice President
<PAGE>
CONSENT
Each of the undersigned, as Subsidiaries party to one or more "Loan
Documents" (as such terms are defined in the Credit Agreement referred to in the
foregoing Amendment), each hereby consents and agrees to the foregoing Amendment
and agrees that (i) each such Loan Document is and shall continue to be in full
force and effect and is hereby ratified and confirmed in all respects except
that, upon the effectiveness of and on and after the date of such Amendment each
reference to the Credit Agreement, "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by such Amendment, and (ii) the collateral described
in such Loan Documents shall continue to secure the payment of the indebtedness
therein described.
NU-KOTE LATIN AMERICA, INC.
By:
--------------------------------------
Name: Richard A. Larsen
Title: Vice President
NU-KOTE INTERNATIONAL DE MEXICO,
S.A. DE C.V.
By:
--------------------------------------
Name: Richard A. Larsen
Title: Vice President
<PAGE>
SCHEDULE 1
Conditions Precedent to Amendment
---------------------------------
1. Audited balance sheets of MIT, of Pelikan Hardcopy, of Pelikan Scotland and
its Subsidiaries, and of Produktions, each as at the end of the fiscal year
ending March 31, 1997, and the related statement of income and stockholders
equity of such Persons for such year, all in reasonable detail and
certified by such Person's independent auditors, and financial statements
of Greif certified by the Chief Financial Officer of such Person, to fairly
present, in all material respects, the financial condition of such Persons
as at the date indicated and the results of their operations for the
periods indicated.
2. True and correct copy of the lease of the Duren, Germany, warehouse, and a
summary of the terms thereof translated into the English language.
3. Current insurance certificates required by the Domestic Loan Documents.
<PAGE>
SCHEDULE 2
Conditions Subsequent to Amendment and Date by Which Delivery is Required
1. By the time period required under applicable Swiss law, satisfactory
evidence that the boards of directors of Pelikan Hardcopy and Produktions
have been duly constituted in accordance with Swiss law.
2. By April 30, 1998, documentation satisfactory to perfect the liens of the
Agent for the benefit of the Eurocurrency Lenders upon any inventory of
Pelikan Scotland now or hereafter located in Germany.
3. On or prior to May 15, 1998, a written recapitalization plan, which may
include a debt restructuring plan, for the Holding, Company and the
Subsidiaries prepared by the Company, which shall be in form and substance
reasonably satisfactory to Required Lenders.
<PAGE>
EXHIBIT 10.34
FOURTH AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT, WAIVER, AND AMENDMENT
TO CERTAIN EUROCURRENCY LOAN DOCUMENTS
--------------------------------------
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
WAIVER, AND AMENDMENT TO CERTAIN EUROCURRENCY LOAN DOCUMENTS ("Amendment") is
dated as of the 29th day of May, 1998, and entered into among NU-KOTE HOLDING,
INC., a Delaware corporation ("Holding"), NU-KOTE INTERNATIONAL, INC., a
Delaware corporation ("Company"), the Lenders and Eurocurrency Lenders
signatory hereto, BARCLAYS BANK PLC, in its capacity as documentation agent
("Documentation Agent"), NATIONSBANK, N.A., a national banking association,
successor by merger to NationsBank of Texas, N.A., as administrative agent and
collateral agent (in such capacities, "Agent"), and BARCLAYS BANK PLC and
NATIONSBANK, N.A., in their capacity as Agent and Fronting Bank, and Collateral
Agent and Documentation Agent, respectively, under the UK Facility Agreement and
the Swiss Facility Agreement referenced herein.
WITNESSETH:
----------
WHEREAS, Holding, Company, Lenders, Documentation Agent and Agent entered
into a Second Amended and Restated Credit Agreement, dated as of July 31, 1997,
as amended by First Amendment to Second Amended and Restated Credit Agreement
dated as of November 28, 1997, Second Amendment to Second Amended and Restated
Credit Agreement dated as of December 31, 1997, and Third Amendment to Second
Amended and Restated Credit Agreement, Waiver, and Amendment to Certain
Eurocurrency Loan Documents dated as of April 1, 1998 (as amended, the "Credit
Agreement");
WHEREAS, Holding and Company have requested that Lenders (i) defer a
portion of the mandatory $5,000,000 reduction in the commitments of the Lenders
to lend until August 31, 1998, and (ii) waive during the period starting on
December 31, 1997, to August 31, 1998, inclusive (the "Waiver Period"),
Holding's and the Company's failure to comply with certain financial covenants
set forth in the Credit Agreement, and
WHEREAS, Lenders and Agent have agreed to grant the requests of Holding and
Company and the parties hereto have agreed to modify the Credit Agreement and
certain Eurocurrency Loan Documents upon the terms and conditions set forth
below.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions. Unless specifically defined or redefined below,
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
SECTION 2. Waivers. Subject to the terms and conditions hereof, Lenders
hereby waive, but only during the Waiver Period, the Specified Defaults
(hereinafter defined); provided, however, that Lenders' waiver of the Specified
Defaults and their rights and remedies as a result of the
<PAGE>
occurrence thereof shall not constitute and shall not be deemed to constitute a
waiver of any other Event of Default, whether arising as a result of further
violations of any provision of the Credit Agreement previously violated by
Holding or Company, or a waiver of any rights and remedies arising as a result
of such other Events of Default. As used herein, "Specified Defaults" shall mean
the failure of Holding and Company to observe (i) the covenants set forth in
Section 6.6A, Section 6.6B, Section 6.6C, Section 6.6E, and Section 6.6H of the
Credit Agreement for the fiscal quarters ended December 31, 1997, March 31,
1998, and June 30, 1998, and (ii) the covenants set forth in Section 6.6F and
Section 6.6G for the months ended December 31, 1997, January 31, 1998, February
28, 1998, March 31, 1998, April 30, 1998, May 31, 1998, June 30, 1998, and July
31, 1998. At the end of the Waiver Period, the waiver of the Specified Defaults
will automatically terminate.
SECTION 3. Amendments to Credit Agreement. Subject to the terms and
conditions hereof, the provisions of the Credit Agreement enumerated below are
amended as follows:
(a) The definition of Asset Sale in Section 1.1 of the Credit Agreement is
amended to add at the end thereof the following phrase:
, other than sales of inventory in the ordinary course of business.
(b) The definition of Net Cash Proceeds in Section 1.1 of the Credit Agreement
is amended to add at the end thereof the following sentence:
In no event shall amounts paid or payable to Holding or any of its
Subsidiaries be deducted in determining Net Cash Proceeds.
(c) Section 2.3B of the Credit Agreement is amended by deleting the words
"1.0%" in the second line thereof and substituting therefor the words
"1.1%", and by deleting the words "June 30, 1998" in the fourth and sixth
lines thereof and substituting therefor the words "August 31, 1998".
(d) Section 2.4A(iii)(a) of the Credit Agreement is amended to read as follows:
On April 30, 1998, June 1, 1998, July 1, 1998, August 1, 1998, August 31,
1998, and October 1, 1998 (or if any such date is not a Business Day, the
next succeeding Business Day), prepay an aggregate principal amount of the
Revolving Credit Loans in the amount, if any, necessary to reduce the sum
of the aggregate principal amount of all Revolving Credit Loans on such
date plus the Letter of Credit Usage on such date, to an amount which does
not exceed the aggregate Revolving Credit Commitments on such date. On
each such date the Company shall also prepay all accrued and unpaid
interest on the principal amount so prepaid.
(e) Section 2.4E(ii) of the Credit Agreement is amended to read as follows:
-2-
<PAGE>
In addition to the reductions specified in subsection 2.4E(i) above, the
Revolving Credit Commitments shall automatically and permanently reduce by
the amount of $1,000,000 on April 30, 1998, by the amount of $250,000 on
each of June 1, 1998, July 1, 1998, and August 1, 1998, by the amount of
$5,000,000 on August 31, 1998, and by the amount of $2,500,000 on October
1, 1998 (or if any such date is not a Business Day, the next succeeding
Business Day).
(f) Section 5.1(xv) of the Credit Agreement is amended to read as follows:
(xv) As soon as practicable and in any event within thirty (30) days
after the last day of each calendar month (including the twelfth calendar
month of each Fiscal Year) thereafter beginning with the calendar month
ending March 31, 1998, consolidated balance sheets of Greif and its
Subsidiaries, of MIT and its Subsidiaries (if any), of Pelikan Scotland and
its Subsidiaries, and of Produktions and its Subsidiaries including Pelikan
Hardcopy, each as at the end of such period, and the related consolidated
statement of income and stockholders equity of such Persons for such month,
all in reasonable detail and certified by the Chief Financial Officer,
Corporate Controller or Treasurer of Holding or such Person to fairly
present, in all material respects, the financial condition of such Persons
as at the date indicated and the results of their operations for the
periods indicated, subject to changes resulting from audit and normal year-
end adjustments, and except that such financial statement need not contain
notes, but shall be prepared substantially in conformity with GAAP,
together with such additional information as Agent may reasonably request
including without limitation monthly reports (both hard copies and copies
on disks) of the accounts receivable and inventory of Produktions and
Pelikan Hardcopy, and copies of annual statutory reports of such Persons
filed in their respective jurisdictions of organization.
(g) Section 6.3(vi) of the Credit Agreement is amended to read as follows:
On and after December 31, 1997, through and including August 31, 1998,
Company and its Domestic Subsidiaries may not make further Investments in
(including intercompany loans to) or otherwise transfer funds or other
assets to Eurocurrency Borrowers for any purpose, except for fundings to or
for the benefit of MIT if the prior written consent of Required Lenders to
such fundings has been obtained, and trade payments made on account of
inventory purchased in the ordinary course of business; furthermore (A)
with respect to the aggregate principal amount of all such Investments in
all such Eurocurrency Borrowers, Company or any such Domestic Subsidiary,
as appropriate, shall maintain a ledger recording all such Investments in
and intercompany loans made pursuant to this subsection 6.3(vi), and such
ledger shall be available for inspection at any Lender's request and (B)
all intercompany loans made pursuant to this subsection 6.3(vi) shall be
evidenced by promissory notes which shall be on terms and conditions
satisfactory to Agent, including collateral, and which shall be pledged and
delivered to Agent pursuant to the Collateral Documents;
(h) Section 6.3(vii) of the Credit Agreement is amended to read as follows:
-3-
<PAGE>
On and after December 31, 1997, through and including August 31, 1998,
Company and its Domestic Subsidiaries may not make further Investments in
(including intercompany loans to) or otherwise transfer funds or other
assets to Latin American Subsidiaries for any purpose; furthermore (A) with
respect to the aggregate principal amount of all such Investments
outstanding on December 31, 1997, Company or any such Domestic Subsidiary,
as appropriate, shall maintain a ledger recording all such Investments in
and intercompany loans made pursuant to this subsection 6.3(vii) prior to
December 31, 1997, and such ledger shall be available for inspection at any
Lender's request and (B) all intercompany loans made pursuant to this
subsection 6.3(vii) shall be evidenced by promissory notes which shall be
on terms and conditions satisfactory to Agent, including collateral, and
which shall be pledged and delivered to Agent pursuant to the Collateral
Documents;
(i) The last sentence of Section 6.3 of the Credit Agreement is amended, and an
additional sentence is added thereafter, to read as follows:
Notwithstanding anything in this Agreement or the Eurocurrency Loan
Documents to the contrary, Holding and its Subsidiaries shall not (i) make
any intercompany subordinated loans, amounts or advances, (ii) enter into
any subordination agreements with respect to intercompany loans, amounts,
advances, or trade accounts payable or receivable, (iii) release any
collateral security for or retention of title with respect to intercompany
loans, amounts, advances, or trade accounts payable or receivable, or (iv)
forgive, modify the terms of, or prepay any intercompany loans, amounts,
advances, or trade accounts payable or receivable. Provided however that
anything to the contrary in this Agreement notwithstanding, Produktions
shall be permitted to (a) convert 7.5 million Swedish Kronas of the
existing indebtedness owed by MIT to Produktions into equity of MIT, (b)
subordinate to all other creditors of MIT 7.5 million Swedish Kronas of the
existing indebtedness owed by MIT to Produktions, (c) provide a capital
guarantee of 7.5 million Swedish Kronas to MIT, or (d) take any such other
similar action required to insure the adequate capitalization of MIT, so
long as the aggregate amount involved with respect to all of the foregoing
does not exceed 7.5 million Swedish Kronas and the foregoing does not
negatively impact the Net Cash Proceeds which may be available to repay the
Obligations and the Eurocurrency Loans in the event of a sale of the shares
or assets of MIT. In addition, Produktions shall be permitted to convert
the presently existing capital coverage guarantee of 17.5 million Swedish
Kronas which Produktions heretofore granted to MIT (a) into equity of MIT,
(b) into a loan subordinate to all other creditors of MIT, or (c) into a
capital contribution to MIT, so long as the foregoing actions do not
negatively impact the Net Cash Proceeds which may be available to repay the
Obligations and the Eurocurrency Loans in the event of a sale of the shares
or assets of MIT.
(j) The introductory paragraph of Section 6.7B of the Credit Agreement is
amended to read as follows:
Neither Holding, Company nor any Subsidiary will enter into any transaction
of merger or consolidation, or liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, exchange, lease,
sub-lease, transfer or otherwise dispose of, in
-4-
<PAGE>
one transaction or a series of related transactions, all or any part of its
business, property or fixed assets or all or any portion of the stock or
other evidence of beneficial ownership of, whether now owned or hereafter
acquired, or acquire by purchase or otherwise all or substantially all the
business, property or fixed assets of, or stock or other evidence of
beneficial ownership of, any Person except:
SECTION 4. Amendment to Swiss Facility Agreement. Effective as of the date
hereof, the obligation of the Eurocurrency Lenders to make Advances to Pelikan
Hardcopy under the Swiss Facility Agreement shall be subject to the condition
precedent that on or before the date of such Advance, Pelikan Hardcopy shall
have executed and delivered to Agent an assignment of its accounts receivable
and bank accounts as security for the obligations of Pelikan Hardcopy under the
Swiss Facility Agreement, pursuant to documentation satisfactory in form and
substance to the Eurocurrency Lenders party to the Swiss Facility Agreement.
SECTION 5. Amendment to UK Facility Agreement. Effective as of the date
hereof, the heading of Clause 12 of the UK Facility Agreement is hereby amended
to read "REPAYMENT AND PREPAYMENT OF ADVANCES" and to add thereto a new Clause
12.3 to read as follows:
12.3 The Borrower shall prepay a principal amount of the Advances
outstanding hereunder in the amount of U.S. $250,000 (or the sterling
equivalent thereof on the date of such payment at the Agent's Spot Rate of
Exchange) on each of June 1, 1998, July 1, 1998, and August 1, 1998 (or if
any such date is not a business day, the next succeeding business day), and
on such dates the Total Commitments shall be reduced by a like amount.
Each such prepayment shall be accompanied by accrued interest on the amount
prepaid to the date of prepayment and by payment of amounts sufficient to
compensate the Lenders for any loss, cost, or expense incurred as a result
of payment on a date other than the last day of the Term for such Advances.
Each reduction of Commitment under this Clause 12.3 shall be applied
against the Commitment of each Lender ratably.
SECTION 6. Consent to Transfer of Slitter from Pelikan Scotland to the
Company. Subject to the terms and conditions hereof, Lenders and Barclays Bank
PLC in its capacity as Trustee under the Debenture (as defined in the UK
Facility Agreement) hereby consent to the Asset Transfer of a slitter valued at
approximately $180,000 from Pelikan Scotland to the Company and the payment by
the Company of such amount to Pelikan Scotland as the purchase price therefor.
SECTION 7. Sale of MIT or other European Assets. In the event MIT or other
assets of the Eurocurrency Borrowers are sold and the Net Cash Proceeds thereof
are applied to reduce the amount of the Obligations or a Eurocurrency Loan then
outstanding (with corresponding permanent reductions in the commitments of the
Lenders or the Eurocurrency Lenders, as applicable, to lend), then the Company
and Pelikan Scotland may request that the amount of the principal Advances which
are required to be prepaid and the reduction of the Total Commitments provided
for in Clause 12.3 of the UK Facility Agreement shall be reviewed, and if all
Lenders agree to do so in the exercise of their sole discretion, such
prepayments may be modified based on the then current cash flow forecast of the
Eurocurrency Borrowers theretofore provided to the Lenders.
-5-
<PAGE>
SECTION 8. Releases. In consideration of Lenders' agreements herein and
certain other good and valuable consideration, Holding and Company each hereby
expressly acknowledge and agree that neither of them has any setoffs,
counterclaims, adjustments, recoupments, defenses, claims or actions of any
character, whether contingent, non-contingent, liquidated, unliquidated, fixed,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, known or unknown, against any Lender, Documentation Agent or Agent or
any grounds or cause for reduction, modification or subordination of the
Obligations or any liens or security interests of any Lender or the Collateral
Agent. To the extent Holding or Company may possess any such setoffs,
counterclaims, adjustments, recoupments, claims, actions, grounds or causes,
each of Holding and Company hereby waives, and hereby releases each Lender,
Documentation Agent and Agent from, any and all of such setoffs, counterclaims,
adjustments, recoupments, claims, actions, grounds and causes, such waiver and
release being with full knowledge and understanding of the circumstances and
effects of such waiver and release and after having consulted counsel with
respect thereto.
SECTION 9. Conditions Precedent. This Amendment shall not be effective
until all corporate actions of Company taken in connection herewith and the
transactions contemplated hereby shall be satisfactory in form and substance to
Documentation Agent, Agent and Lenders, and each of the following conditions
precedent shall have been satisfied:
(a) All fees and expenses, including legal and other professional fees
and expenses incurred on or prior to the date of this Amendment by Agent or
any Lender, including, without limitation, the fees and expenses of U.S.
and foreign counsel and title insurance expenses, shall have been paid to
the extent that same have been billed.
(b) Agent and each Lender shall have received each of the following,
in form and substance satisfactory to Agent, Lenders and Agent's counsel in
their sole and absolute discretion:
(1) a certificate of Holding and Company certifying (i) as to
the accuracy, after giving effect to this Amendment, of the
representations and warranties set forth in Section 4 of the Credit
Agreement, the other Loan Documents and in this Amendment, and (ii)
that there exists no Potential Event of Default or Event of Default,
after giving effect to this Amendment, and the execution, delivery and
performance of this Amendment will not cause a Potential Event of
Default or Event of Default;
(2) such other documents, instruments, and certificates, in form
and substance reasonably satisfactory to Lenders, as Lenders shall
deem necessary or appropriate in connection with this Amendment and
the transactions contemplated hereby, including without limitation
copies of resolutions of the boards of directors of each of Holding,
Company, and each Eurocurrency Borrower authorizing the transactions
contemplated by this Amendment; and
(3) a favorable opinion of Swiss counsel to Pelikan Hardcopy and
Produktions with respect to the authority of such Persons to enter
into the
-6-
<PAGE>
transactions contemplated by this Amendment and such other matters as
Agent or its counsel may reasonably request.
(c) All accrued and unpaid interest and fees due with respect to the
Revolving Credit Loans and the Eurocurrency Loans through and including May
29, 1998, shall have been paid in full.
(d) Company shall have delivered or caused to be delivered to Agent
the items listed on Schedule 1 hereto in form and substance satisfactory to
Agent and its counsel.
SECTION 10. Conditions Subsequent. As conditions subsequent to the
effectiveness of this Amendment, Company shall deliver to Agent, in form and
substance reasonably satisfactory to Agent and its counsel, on or before each of
the dates indicated on Schedule 2 hereto, the items provided on Schedule 2 to be
delivered on or before such date. Upon Company's failure to make any such
delivery, the waiver of the Specified Defaults provided in this Amendment will
automatically terminate and be of no further force and effect.
SECTION 11. Representations and Warranties; Ratifications. Holding and
Company represent and warrant to Lenders, Documentation Agent and Agent that (a)
this Amendment constitutes their legal, valid, and binding obligations,
enforceable in accordance with the terms hereof (subject as to enforcement of
remedies to any applicable bankruptcy, reorganization, moratorium, or other laws
or principles of equity affecting the enforcement of creditors' rights
generally), (b) there exists no Potential Event of Default or Event of Default
under the Credit Agreement after giving effect to this Amendment, (c) their
representations and warranties set forth in the Credit Agreement and other Loan
Documents are true and correct on the date hereof after giving effect to this
Amendment, (d) they have complied with all agreements and conditions to be
complied with by them under the Credit Agreement and the other Loan Documents by
the date hereof after giving effect to this Amendment, and (e) the Credit
Agreement, as amended hereby, and the other Loan Documents remain in full force
and effect. Except as expressly modified by this Amendment, the terms and
provisions of the Credit Agreement and the other Loan Documents are ratified and
confirmed and shall continue in full force and effect. Except as provided
herein, this Amendment shall not constitute an amendment or waiver of any terms
and provisions of the Credit Agreement and other Loan Documents nor a waiver of
the rights of the Lenders, Documentation Agent and Agent to insist upon
compliance with each term, covenant, condition or provision of the Credit
Agreement and other Loan Documents.
SECTION 12. Expenses of Lenders. Holding and Company hereby jointly and
severally agree to pay on demand all reasonable costs and expenses incurred by
Agent or any Lender, including costs and fees of counsel to Agent or any Lender
and other professional fees and expenses, in connection with the preparation,
negotiation, review and execution of this Amendment and the other Loan Documents
executed pursuant hereto and any and all amendments, modifications and
supplements thereto. Holding and Company hereby confirm their obligation to pay
promptly the costs and expenses for which they are obligated pursuant to Section
10.3 of the Credit Agreement.
-7-
<PAGE>
SECTION 13. Further Assurances. Holding and Company shall execute and
deliver such further agreements, documents, instruments, and certificates in
form and substance satisfactory to Agent, as Agent or any Lender may deem
necessary or appropriate in connection with this Amendment.
SECTION 14. Representations and Consents of Eurocurrency Borrowers and
Eurocurrency Lenders. Each Eurocurrency Borrower and Eurocurrency Lender by its
execution below consents and agrees to this Amendment and agrees that the
Eurocurrency Credit Agreement or Eurocurrency Credit Agreements to which it is a
party are and shall continue to be in full force and effect and are hereby
ratified and confirmed in all respects except that, upon the effectiveness of
and on and after the date of this Amendment each reference to the Credit
Agreement, "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment. Each Eurocurrency Borrower agrees that the
collateral described in the Eurocurrency Security Documents to which it is a
party shall continue to secure the payment of the indebtedness therein
described. Each Eurocurrency Borrower represents and warrants to Lenders,
Documentation Agent and Agent that (a) this Amendment constitutes their legal,
valid, and binding obligations, enforceable in accordance with the terms hereof
(subject as to enforcement of remedies to any applicable bankruptcy,
reorganization, moratorium, or other laws or principles of equity affecting the
enforcement of creditors' rights generally), (b) the representations and
warranties set forth in their respective Eurocurrency Credit Agreement and other
Eurocurrency Loan Documents are true and correct on the date hereof after giving
effect to this Amendment, and (c) they have complied with all agreements and
conditions to be complied with by them under their respective Eurocurrency
Credit Agreement and the other Eurocurrency Loan Documents by the date hereof
after giving effect to this Amendment.
SECTION 15. Counterparts. This Amendment and the other Loan Documents may
be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought. Telecopies of
signatures shall be binding and effective as originals.
SECTION 16. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
HOLDING AND COMPANY EACH HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR OTHERWISE)
ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY
RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE
SITTING WITHOUT A JURY.
SECTION 17. GOVERNING LAW. (A) THIS AGREEMENT AND ALL DOMESTIC LOAN
DOCUMENTS SHALL BE DEEMED CONTRACTS MADE UNDER THE LAWS OF TEXAS AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF TEXAS,
EXCEPT TO THE EXTENT (1) FEDERAL LAWS GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT AND INTERPRETATION OF ALL OR ANY PART OF THIS AGREEMENT AND ALL
-8-
<PAGE>
DOMESTIC LOAN DOCUMENTS OR (2) STATE LAW GOVERNS UCC COLLATERAL INTERESTS FOR
PROPERTIES OUTSIDE THE STATE OF TEXAS. WITHOUT EXCLUDING ANY OTHER
JURISDICTION, HOLDING AND COMPANY EACH AGREES THAT THE COURTS OF TEXAS WILL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH.
(B) HOLDING AND COMPANY EACH HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL
PROCESS UPON IT. IN ADDITION, HOLDING AND COMPANY EACH AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY REGISTERED MAIL (RETURN RECEIPT REQUESTED)
DIRECTED TO IT AT ITS ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON RECEIPT BY IT. NOTHING IN
THIS SECTION SHALL AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 18. ENTIRE AGREEMENT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS AMENDMENT
SHALL CONSTITUTE A LOAN DOCUMENT.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.]
-9-
<PAGE>
IN WITNESS WHEREOF, this Amendment is executed as of the date first set
forth above.
Holding: NU-KOTE HOLDING, INC.
By:
------------------------------
Richard A. Larsen
Senior Vice President
Company: NU-KOTE INTERNATIONAL, INC.
By:
------------------------------
Richard A. Larsen
Senior Vice President
Agent: NATIONSBANK, N.A.,
By:
-------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
Documentation Agent: BARCLAYS BANK PLC
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Lenders and Eurocurrency NATIONSBANK, N.A.
Lenders:
By:
-------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
<PAGE>
BARCLAYS BANK PLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ABN AMRO BANK, N.V.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CREDIT LYONNAIS, NEW YORK BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
<PAGE>
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST AMERICAN NATIONAL BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SOCIETE GENERALE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
<PAGE>
FRONTING BANK: BARCLAYS BANK PLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
AGENT UNDER EUROCURRENCY BARCLAYS BANK PLC
CREDIT AGREEMENTS:
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
COLLATERAL AGENT AND NATIONSBANK, N.A.
DOCUMENTATION AGENT
UNDER EUROCURRENCY
CREDIT AGREEMENTS:
By:
--------------------------------
Name: William E. Livingstone, IV
Title: Senior Vice President
ADDITIONAL EUROCURRENCY DEUTSCHE BANK AG LONDON BRANCH
LENDERS:
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CREDIT LYONNAIS, S.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
<PAGE>
CONSENTED AND AGREED TO BY THE UNDERSIGNED IN THEIR CAPACITY AS EUROCURRENCY
BORROWERS TO THE EXTENT THAT THE TERMS HEREOF IN ANY MANNER AFFECT OR ARE
APPLICABLE TO THE EUROCURRENCY BORROWERS OR ANY EUROCURRENCY LOAN DOCUMENTS:
PELIKAN SCOTLAND LIMITED
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
PELIKAN PRODUKTIONS AG
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
PELIKAN HARDCOPY (INTERNATIONAL) AG
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
<PAGE>
CONSENT
Each of the undersigned, as Guarantors under a "Subsidiary Guaranty" and as
grantors under one or more "Subsidiary Security Documents" (as such terms are
defined in the Credit Agreement referred to in the foregoing Amendment), each
hereby consents and agrees to the foregoing Amendment and agrees that (I) each
Subsidiary Guaranty and Subsidiary Security Document is and shall continue to be
in full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of and on and after the date of such
Amendment each reference to the Credit Agreement, "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by such Amendment, and (ii) the
collateral described in the Subsidiary Security Documents shall continue to
secure the payment of the indebtedness therein described.
FUTURE GRAPHICS, INC.
By:
---------------------------
Richard A. Larsen
Vice President
INTERNATIONAL COMMUNICATION
MATERIALS, INC.
By:
---------------------------
Richard A. Larsen
Vice President
NU-KOTE IMAGING INTERNATIONAL, INC.
By:
---------------------------
Richard A. Larsen
Vice President
NU-KOTE IMPERIAL, LTD.
By:
---------------------------
Richard A. Larsen
Vice President
<PAGE>
CONSENT
Each of the undersigned, as Subsidiaries party to one or more "Loan
Documents" (as such terms are defined in the Credit Agreement referred to in the
foregoing Amendment), each hereby consents and agrees to the foregoing Amendment
and agrees that (I) each such Loan Document is and shall continue to be in full
force and effect and is hereby ratified and confirmed in all respects except
that, upon the effectiveness of and on and after the date of such Amendment each
reference to the Credit Agreement, "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by such Amendment, and (ii) the collateral described
in such Loan Documents shall continue to secure the payment of the indebtedness
therein described.
NU-KOTE LATIN AMERICA, INC.
By:
---------------------------------
Name: Richard A. Larsen
Title: Vice President
NU-KOTE INTERNATIONAL DE MEXICO,
S.A. DE C.V.
By:
---------------------------------
Name: Richard A. Larsen
Title: Vice President
<PAGE>
SCHEDULE 1
Conditions Precedent to Amendment
1. Produktions shall have made application to the appropriate Swiss
authorities with respect to the issuance of mortgage certificates in the
minimum amount of Swiss Francs $4,050,000, and shall have provided to Agent
evidence thereof.
<PAGE>
SCHEDULE 2
Conditions Subsequent to Amendment and Date by Which Delivery is Required
1. By the time period required under applicable Swiss law, satisfactory
evidence that the boards of directors of Pelikan Hardcopy and Produktions
have been duly constituted in accordance with Swiss law.
2. Within ten (10) days after issuance of additional mortgage certificates to
Produktions by Swiss authorities, such mortgage certificates shall be
delivered to the Agent or the Agent under the Eurocurrency Credit
Agreements as security for the obligations owing under the Swiss Facility
Agreement.
3. On or before June 12, 1998, Pelikan Hardcopy shall have executed Retention
of Title Agreements with Produktions and Pelikan Scotland and an Assignment
Agreement among Pelikan Hardcopy, Produktions, and Pelikan Scotland in form
and substance satisfactory to Agent, true and correct copies thereof shall
have been delivered to Agent, and a true and correct copy of any Retention
of Title Agreement between Greif and Pelikan Hardcopy shall have been
delivered to Agent.
