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AMENDMENT AGREEMENT No. 4
to the Loan Agreement of July 6, 1998 in the amount of DM 508 million
between
ZELLSTOFF- UND PAPIERFABRIK XXXXXXXXX GMBH & CO KG
(hereinafter referred to as the "BORROWER")
and
BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT
acting in on its own behalf as well as representing the
LENDERS of the LOAN AGREEMENT
(as defined in the following)
The BORROWER, the Bayerische Vereinsbank Aktiengesellschaft ("BV") and the
Bayerische Hypotheken- und Wechsel-Bank Aktiengesellschaft ("Hypo-Bank")
or the banks referred to on the signature page of this Agreement
(hereinafter referred to jointly with the Bayerische Hypo- und Vereinsbank
AG as the "LENDERS") concluded on July 6, 1998 the LOAN AGREEMENT, on July
28, 1998 Amendment Agreement No. 1 to the LOAN AGREEMENT, on November 11,
1998 and November 30, 1998 Amendment Agreement No. 2 to the LOAN AGREEMENT
and on March 1, 2000 Amendment Agreement No. 3 to the LOAN AGREEMENT (the
Loan Agreement of July 6, 1998 and the Amendment Agreements No. 1 - 3 are
referred to jointly in the following as the "LOAN AGREEMENT").
The BV and the Hypo-Bank merged on August 31, 1998 to form Bayerische
Hypo- und Vereinsbank AG. All the rights and obligations of BV and Hypo-
Bank under the LOAN AGREEMENT as well as the other agreements concluded in
connection with the LOAN AGREEMENT with the BV and/or the Hypo-Bank as a
party passed to Bayerische Hypo- und Vereinsbank AG as a result of the
merger.
The banks referred to on the signature page of this Agreement have acceded
to this LOAN AGREEMENT by assignment/transfer in accordance with Article
30 of the LOAN AGREEMENT.
The BORROWER and the LENDERS now, therefore, agree as follows:
I. Amendments to the LOAN AGREEMENT
1. Article 1.34 of the LOAN AGREEMENT will be amended to the extent that
the COMPLETION DATE shall mean June 30, 2000.
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2. The following addition will be made to the end of Article 1.36,
sentence 2 of the LOAN AGREEMENT: "...as well as the sum of all
interest, the amount of the principal and the commissions that were
payable under this Agreement during this period (adjusted respectively
by payments or receipts by the BORROWER under interest rate hedging
agreements entered into by the BORROWER with the approval of the
FACILITY AGENT)."
3. In Article 1.52 of the LOAN AGREEMENT the following words shall be
added after "C&L Ausfallburgschaft": "..., all the pledge agreements
to be entered into in the future between the BORROWER and the LENDERS
in relation to the claims of the BORROWER under the HEDGING AGREEMENTS
pursuant to Article 20.4 of the LOAN AGREEMENT as provided in the
model attached to Annex 1 of the Amendment Agreement No. 4 to this
LOAN AGREEMENT".
4. Article 1.61, sentence 1 shall read as follows (modified text is
marked):
"1.61 "Required Balance" shall mean the amount to be maintained as
security in the DEBT SERVICE RESERVE ACCOUNT as from the fifth
BUSINESS DAY after Amendment Agreement No. 4 to this LOAN AGREEMENT
takes effect (the "DAY OF PAYMENT") until the LOAN has been repaid in
full, which at least shall equal the aggregate of (i) the amounts
payable by the BORROWER under this FACILITY as principal on the two
REPAYMENT DATES immediately following such date (but, for
clarification purposes, excluding any extraordinary repayment to be
effected by the BORROWER pursuant to Article 9.4), (ii) the amounts
reasonably estimated by the FACILITY AGENT as to be payable as
interest on the outstanding principal during the 12 month period
ending on the second of such REPAYMENT DATES (adjusted by payments or
receipts of the BORROWER under interest rate hedging agreements
concluded by the BORROWER under the HEDGING STRATEGY with the approval
of the FACILITY AGENT), (iii) the amounts of the fees payable to
C&L in connection with the C&L AUSFALLBURGSCHAFT during such period,
and (for the first time starting in March 31, 2002) (iv) the
ADDITIONAL RESERVE; the amount of the first REQUIRED BALANCE shall be
determined at the latest on the DAY OF PAYMENT by the FACILITY AGENT.
Thereafter the REQUIRED BALANCE shall be recalculated by the FACILITY
AGENT on each INTEREST RATE DETERMINATION DATE and shall be notified
to the BORROWER without delay."
5. Article 1.73 shall read as follows:
"DEBT SERVICE RESERVE ACCOUNT" shall mean the accounts (including
investment and currency accounts) with VEREINSBANK, Dresden branch,
and with HypoVereinsbank Luxembourg Societe Anonyme opened by the
BORROWER for the purpose referred to in Article 20.1."
6. The following sub-paragraphs will be included at the end of Article 1:
"1.100 "HEDGING STRATEGY" shall mean the strategy agreed upon in
each case between the BORROWER and the MAJORITY OF THE LENDERS in
relation to this LOAN AGREEMENT for the purpose of securing the
interest, currency and cellulose price risks of the BORROWER."
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"1.101 "HEDGING AGREEMENTS" shall mean all agreements for the
purpose of securing the interest, currency and cellulose price risks
of the BORROWER that the BORROWER will enter into with the Bayerische
Hypo- und Vereinsbank AG in connection with the HEDGING STRATEGY
agreed upon with the LENDERS."
"1.102 "ADDITIONAL RESERVE" shall mean, up to a maximum sum of DM
10,000,000.00 in total, 15% of all amounts that are entered into the
PROCEEDS ACCOUNT on a REPAYMENT DATE (for the first time, however, on
March 31, 2002) and could be transferred by the BORROWER under Article
20.2 (b) (after exceptional repayments pursuant to Article 9.4 (a) in
conjunction with Article 20.2 (b) of the LOAN AGREEMENT but without
taking into account the obligation of the BORROWER to provide the
ADDITIONAL RESERVE) to the SHAREHOLDER ACCOUNT insofar as these
amounts otherwise meet the requirements of Article 20.2 (c) (i) and
(ii)."
7. Article 5.4 of the LOAN AGREEMENT is amended at the end as follows:
"With regard to the arrangement under sub-paragraph 2 of Amendment
Agreement No. 1 of December 13, 2000 relating to the Agreement on
obligations of the shareholders of July 6, 1998, the BORROWER shall
not draw any amounts in excess of DM 453,000,000.00."
8. The following addition shall be made to the end of Article 9.5 of the
LOAN AGREEMENT: "...unless the REPAYMENT DATE would fall in the next
calendar month as a result. In such a case, the REPAYMENT DATE shall
be the business day immediately prior to this with the result that the
INTEREST PERIOD is correspondingly shortened."
9. Article 19.1 (b) of the LOAN AGREEMENT shall be amended as follows:
"The BORROWER shall submit to the FACILITY AGENT within 60 days after
the end of a fiscal year or half-year, respectively, of the BORROWER
the information required to calculate the ANNUAL DEBT SERVICE COVER
RATIO pursuant to Article 21.2 that is to be confirmed in each case by
the BORROWER's auditors. The BORROWER shall further submit within 90
days after the end of a fiscal year or half-year, respectively, of the
BORROWER the cash flow projections concerning the BORROWER for the
period ending on the GENERAL TRANCHE FINAL MATURITY DATE,..."
10. The following addition shall be made to the end of Article 19.4.1 (j)
(cc) of the LOAN AGREEMENT: "insofar as these persons do not act with
intent. The waiver relating to rights of subrogation and actions does
not refer to intent and not to rights vis-a-vis persons other than the
third persons named in the first sentence of this paragraph."
11. Article 19.4.1 (j) (dd) of the LOAN AGREEMENT shall be amended as
follows: "If under the terms of the insurance policy the insurers are
exempted from the obligation to pay compensation due to the conduct of
the BORROWER as the insured, the insurers shall nevertheless pay the
compensation in the amount of all claims of the LENDERS against the
BORROWER to the SECURITY TRUSTEE (for LENDERS' account) against the
assignment of these claims in the corresponding amount. The agreements
in Article 19.4.1 (j) (cc) shall remain unaffected by this. The claims
may not be transferred to the insurers at the expense of the LENDERS,
in particular the insurers may not enforce any rights resulting from
the assigned claims in relation to the LENDERS. Before the claims of
the LENDERS are fully satisfied, the insurers are not entitled
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to transfer of securities that have been granted to the LENDERS for
the purpose of securing the claims."
12. The following addition will be made to the end of Article 19.4.1 (j)
(ff) sentence 1 of the LOAN AGREEMENT: "...and also in an amount of
all claims of the LENDERS vis-a-vis the BORROWER."
13. The following addition will be made to the end of Article 19.4.2 (b)
of the LOAN AGREEMENT: "Non-material parts include current and future
assets, rights and incomes up to an accumulated amount of DM
2,000,000.00 per calendar year, financial assets and investments in
assets up to an amount of DM 2,000,000.00 per calendar year and
obligations up to an amount of DM 2,000,000.00 per calendar year
insofar as, with regard to investments in fixed assets, these are
financed without making use of loan funds from the cash flow or of
equity. A decisive factor for calculating the amounts referred to in
the previous sentence is in each case the market value at the time of
procurement or sale. The expenditures on plant replacements amounting
to DM 8,000,000.00 per calendar year that were planned in the original
CASH FLOW MODEL shall be considered approved investments and shall not
be included in these amounts."
14. The following modification will be made to the end of Article 19.4.2
(c) of the LOAN AGREEMENT (modified text is marked): "...exceeding in
total...the amount of DM 1 Mio. or EUR 0.5 Mio. per calendar year."
15. In Article 20.1 sentence 3 of the second sub-paragraph shall be
amended as follows: "All credit balances in the DEBT SERVICE RESERVE
ACCOUNT shall be pledged in favor of the LENDERS. The related
memoranda of pledge shall essentially correspond to the drafts
enclosed in Annexes 12 B (1) and 12 B (2)."
16. The following new (fourth) sub-paragraph shall be added to Article
20.1: - "Credit balances in the PROCEEDS ACCOUNT and the DEBT
SERVICE RESERVE ACCOUNT may be deposited by issuers in short-term debt
securities in DM or EURO (with a maturity of a maximum of 3 years)
that, in relation to their last issued, unsecured, non-subordinated
long and medium-term capital market securities from the Standard &
Poor's Corporation, have been given a short-term rating of A1 or a
long-term rating of A- or above, or a corresponding rating from
another rating agency recognized by the FACILITY AGENT. The
aforementioned securities are to be entered in a depot of the BORROWER
belonging to the PROCEEDS ACCOUNT or the DEBT SERVICE RESERVE ACCOUNT
at the HypoVereinsbank, Dresden branch. All the securities and the
incomes resulting therefrom shall be pledged in favor of the LENDER.
The related memoranda of pledge shall essentially correspond to the
drafts enclosed in Annexes 12 A (1) or 12 B (1)."
17. Article 20.2 (a) (i) of the LOAN AGREEMENT shall be amended as follows
(modified text is marked): "...and operating costs (including any
payments to be made by the BORROWER in connection with HEDGING
AGREEMENTS, but excluding...".
18. In Article 20.2 (a) (ii) of the LOAN AGREEMENT the following words
shall be deleted: "and of all amounts due under the hedging
agreements entered into by the BORROWER with the approval of the
FACILITY AGENT".
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19. The following changes will be made in Article 20.3 of the LOAN
AGREEMENT: In the second line the words "February 28, 2001" shall be
replaced by the words: "five (5) BUSINESS DAYS after Amendment
Agreement No. 4 to this LOAN AGREEMENT takes effect". Sentence 2
shall be deleted.
20. The heading of Article 20.4 of the LOAN AGREEMENT shall be amended as
follows (modified text is marked): "Assignment or Pledging of Future
Hedging, respectively, Project and Supply Contracts, Transfer of
Movable Property". Article 20.4 sentence 1 of the LOAN AGREEMENT
shall be amended in the fourth line as follows: "...rights and claims
under all further MATERIAL PROJECT CONTRACTS and HEDGING CONTRACTS
entered into...". Article 20.4 sentence 1 shall be amended in line 8
as follows (modified text is marked): "...to transfer by way of
security or to pledge to the LENDERS...".
21. Article 21.1 sentence 2 of the LOAN AGREEMENT shall be amended as
follows (modified text is marked): "Such INITIAL BANKING CASE shall
serve as a model structure for all further (revised) BANKING CASES,
which will be prepared by the FACILITY AGENT as he deems necessary
until repayment in full of all amounts due hereunder."
22. Article 21.2 of the LOAN AGREEMENT shall be amended as follows:
"During the period from the COMPLETION DATE until the date when all
amounts outstanding under this AGREEMENT have been repaid in full, the
FACILITY AGENT will determine the ANNUAL DEBT SERVICE COVER RATIO on a
half-yearly basis, in each case on the last day of the fiscal year or
half-year of the BORROWER as soon as the information required for the
calculations has been submitted to him by the BORROWER and confirmed
by the auditor."
23. The FACILITY AGENT shall calculate the ANNUAL DEBT SERVICE COVER RATIO
pursuant to Article 21.2 of the LOAN AGREEMENT for the first time as
of January 1, 2001. The period to be set for the calculation pursuant
to Article 1.45 of the LOAN AGREEMENT shall cover January 1, 2000 to
December 31, 2000. Since the BORROWER has no repayment commitments in
this period, the amounts that the BORROWER has to repay in 2001 under
Annex 2 of this Agreement (Annex 19 of the LOAN AGREEMENT) shall be
taken as fictitious repayment amounts for the purpose of calculating
the ANNUAL DEBT SERVICE COVER RATIO. If the result of this calculation
of the ANNUAL DEBT SERVICE COVER RATIO is above 1.7, the MARGIN shall
be reduced as of March 30, 2001 to 0.6 % p.a..
24. The BORROWER shall ensure that the "Agreement concerning the
obligations of the shareholders" shall be amended essentially in
accordance with the draft enclosed with this Agreement as Annex 3.
25. In Annex 15 of the LOAN AGREEMENT the following words shall be deleted
under B. 2. after "Deductible": "but in respect of machinery
breakdown".
26. In Annex 15 of the LOAN AGREEMENT under B.3 after "Deductible" the
amount of DM 15,000.00 shall be changed to DM 100,000.00".
27. In Annex 15 of the LOAN AGREEMENT at the end of B. 4 a) the words
"Environmental Impairment Cover as required under Annex 1 of the
English Environmental Act, and" shall be
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replaced as follows: "as may be necessary to comply with the
environmental law of the Federal Republic of Germany, and...".
28. Pursuant to Annex 15 of the LOAN AGREEMENT the BORROWER is obliged
before the COMPLETION DATE to observe minimum insurance schedule A
"Period until Completion", and after the COMPLETION DATE to observe
minimum insurance schedule B "Operating period from Completion". The
LENDERS shall agree for the purposes of Article 19.4.1 (j) that the
BORROWER should be enabled to transfer from minimum insurance schedule
A to minimum insurance schedule B also in derogation of the COMPLETION
DATE.
29. Annex 19 of the LOAN AGREEMENT shall be replaced by Annex 2 of this
Agreement.
30. Annexes 12 A (1) and 12 A (2) of the LOAN AGREEMENT shall be replaced
by the drafts attached to this Agreement as Annexes 7 and 8, the
drafts pursuant to Annex 12 B (1) and 12 B (2) of the LOAN AGREEMENT
shall be amended in accordance with Annexes 9 and 10 of this
Agreement.
31. The LENDERS shall agree for the purposes of Article 19.4.2 (c) of the
LOAN AGREEMENT to the conclusion of the facility by way of bank
guarantee (Avalkredit), a copy of which is enclosed as Annex 4,
between the BORROWER and the Bayerische Hypo- und Vereinsbank AG.
All the other terms and provisions of the LOAN AGREEMENT shall remain
unaffected by these modifications. The parties agree that no English
translation agreed upon between the parties will be made of this Amendment
Agreement No. 4.
II. Miscellaneous
1. The LENDERS, the BORROWER, the GUARANTORS and the Bayerische Hypo- und
Vereinsbank AG agree that the SECURITY DOCUMENTS (with the exception
of C&L-AUSFALLBURGSCHAFT) for the claims of the LENDERS from the LOAN
AGREEMENT shall provide security ranking pari passu for the claims of
the Bayerische Hypo- und Vereinsbank AG against the BORROWER from the
HEDGING AGREEMENTS that are to be entered into in the future. The
LENDERS, the BORROWER and the Bayerische Hypo- und Vereinsbank AG in
its capacity as an assignee under the HEDGING AGREEMENTS shall for
this purpose enter into Amendment Agreement No. 1 concerning security
agreements in connection with the Loan Agreement of July 6, 1998 in
the amount of DM 508 million as amended by the Amendment Agreements
Nos. 1 - 4 as well as Amendment Agreement No. 1 concerning the pledge
agreements relating to the shares in the BORROWER as well as in
Zellstoff- und Papierfabrik Xxxxxxxxx Verwaltungs-GmbH essentially in
accordance with the drafts enclosed as Annexes 5A and 5B.
2. The BORROWER shall pledge his claims against the Bayerische Hypo- und
Vereinsbank AG from the HEDGING AGREEMENTS that are to be entered into
in the future both to the LENDERS as security for their claims against
the BORROWER from the LOAN AGREEMENT as well as to the Bayerische
Hypo- und Vereinsbank AG as security for its claims against the
BORROWER from the HEDGING AGREEMENTS that are to be concluded. The
BORROWER and the LENDERS shall further agree to the amendments of the
Security Pooling Agreement of
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December 13, 2000 that are necessary in this connection essentially in
accordance with the draft of an amended version of the Security
Pooling Agreement enclosed with this Agreement as Annex 6.
3. With respect to the insurance policies that have been or still have to
be concluded by the BORROWER as provided in Annex 15 of the LOAN
AGREEMENT, a new assignment agreement shall be concluded between the
BORROWER and the LENDERS, which shall replace the assignment agreement
of July 28, 1998. The following provision shall be added to Annex 7 of
the LOAN AGREEMENT for the purposes of this assignment agreement:
"The BORROWER shall inform the insurers that the collateral assigned
to the LENDERS is the property of the LENDERS, that the LENDERS are
vested with all the rights from the insurance agreements and that the
LENDERS shall succeed only to the rights and not to the obligations of
the insurance agreements provided that the BORROWER is not entitled to
cancel the insurance policy without the approval of the LENDERS. The
BORROWER shall request the insurers to send the LENDERS a
corresponding security note. If the BORROWER has not, or not
sufficiently, effected the insurance policies, the LENDERS may do so
at his expense."
4. Once the pledge memoranda referred to in Annexes 7 to 10 take effect,
the liens on the respective values pledged shall be settled pursuant
to the pledge agreements of July 28, 1998 (Proceeds Account), of July
28, 1998 (Debt Service Reserve Account) and of December 15, 1998 or
January 5, 1999 (Investment Account of the Proceeds Account with the
HypoVereinsbank Xxxxxxxxx X.X.).
III. Final Provisions
The provisions of Articles 34.2, 34.3, 34.4 and 34.5 of the LOAN AGREEMENT
shall apply mutatis mutandis to this Amendment Agreement No. 4.
The GUARANTORS agreed to this Amendment Agreement No. 4 and its Annexes in
their letter of November 28, 2000 in principle. The HypoVereinsbank shall
submit this Agreement to the GUARANTORS for final approval.
The signing of the agreements referred to in Annexes 1, 3, 5 and 6 as well
as the final approval of the GUARANTORS is a condition precedent for the
effectiveness of this Amendment Agreement No. 4 as well as the agreements
referred to in Annexes 7-10.
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This Amendment Agreement No. 4 shall be signed in duplicate. One copy each
is intended for the BORROWER and the Bayerische Hypo- und Vereinsbank AG.
Each copy shall be considered as an original.
Blankenstein, December 13, 2000
----------------------------------------------
Zellstoff- und Papierfabrik Xxxxxxxxx
GmbH & Co KG
Blankenstein, December 13, 2000
----------------------------------------------
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
acting on its own behalf and as a representative of the following banks:
ABB Export Bank, Zurich
Baden-Wurttembergische Bank, Stuttgart
Banca Monte Dei Paschi Di Siena SpA, Frankfurt / Main
DG Bank, Nurnberg
GZ-Bank AG, Frankfurt am Main
Landesbank Rheinland-Pfalz International S.A., Luxembourg
Sachsen LB, Leipzig
Annexes:
1. Draft of the pledge agreement relating to the claims of the BORROWER
from the HEDGING AGREEMENTS.
2. Amendments of Annex 19 of the LOAN AGREEMENT.
3. Draft of "Amendment Agreement No. 1 to the Agreement concerning
obligations of the shareholders of July 6, 1998".
4. Agreement on granting a facility by way of bank guarantee of June 30,
2000 between the BORROWER and Xxxxxxxxxx Xxxx- xxx Xxxxxxxxxxx XX.
0X. Amendment Agreement No. 1 concerning security agreements in connection
with the Loan Agreement of July 6, 1998 in the amount of DM 508
million as amended by Amendment Agreements Nos. 1 - 4.
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5B. Amendment Agreement No. 1 concerning pledge agreements in connection
with the shares in the BORROWER as well as in Zellstoff- und
Papierfabrik Xxxxxxxxx Verwaltungs-GmbH.
6. Draft of the amended version of the Security Pooling Agreement of July
28, 1998.
7. Draft of Annex 12 A (1) of the LOAN AGREEMENT.
8. Draft of Annex 12 A (2) of the LOAN AGREEMENT.
9. Draft of Annex 12 B (1) of the LOAN AGREEMENT.
10. Draft of Annex 12 B (2) of the LOAN AGREEMENT.
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ANNEX 3
AMENDMENT AGREEMENT No. 1
to the
Agreement concerning obligations of the shareholders of July 6, 1998
in
connection with the Loan Agreement of July 6, 1998 in the amount of
DM 508 million as amended by Amendment Agreements Nos. 1 - 4
(hereinafter referred to as "LOAN AGREEMENT")
between
XXXXXX INTERNATIONAL, INC.
(hereinafter referred to as "XXXXXX"),
SPEZIALPAPIERFABRIK BLANKENSTEIN GMBH
(hereinafter referred to as "SPEZIALPAPIERFABRIK"),
ZELLSTOFF- UND PAPIERFABRIK XXXXXXXXX VERWALTUNGS-GMBH
(hereinafter referred to as "VERWALTUNGS-GMBH")
on the one hand
and
BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT
acting on its own behalf as well as representing the
LENDERS of the LOAN AGREEMENT
(as defined in the following)
on the other hand
XXXXXX, SPEZIALPAPIERFABRIK and VERWALTUNGS-GMBH on the one hand and the
Bayerische Vereinsbank AG (hereinafter referred to as "BV") and the
Bayerische Hypotheken- und Wechsel-Bank AG (hereinafter referred to as
"Hypo-Bank") on the other hand entered into the "Agreement concerning
obligations of the shareholders" in connection with the LOAN AGREEMENT on
July 6, 1998.
The BV and the Hypo-Bank merged on August 31, 1998 to form Bayerische
Hypo- und Vereinsbank AG. All the rights and obligations of BV and Hypo-
Bank under the "Agreement concerning obligations of the shareholders" have
passed to Bayerische Hypo- und Vereinsbank AG as a result of the merger.
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The banks referred to on the signature page of this Agreement (hereinafter
referred to with the Bayerische Hypo- und Vereinsbank AG as the "LENDERS")
have acceded to this LOAN AGREEMENT and the Agreement concerning
obligations of the shareholders of July 6, 1998 by assignment/transfer in
accordance with Article 30 of the LOAN AGREEMENT.
The parties are aware that the BORROWER and the LENDERS of the LOAN
AGREEMENT entered into Amendment Agreement No. 4 to the LOAN AGREEMENT on
December 13, 2000 and that the conclusion of this Amendment Agreement No.
1 is a condition precedent for the coming into effect of Amendment
Agreement No. 4 to the LOAN AGREEMENT.
XXXXXX, SPEZIALPAPIERFABRIK, VERWALTUNGS-GMBH as well as the LENDERS
therefore agree as follows:
1. The terms used in this amendment agreement shall have the meanings
given to them in the LOAN AGREEMENT.
2. The following addition shall be made to the end of sub-paragraph 3
i):
"If the fixed-term deposit of DM 25 million of SPEZIALPAPIERFABRIK
with HypoVereinsbank Xxxxxxxxx X.X. (account no. 550177)
(hereinafter referred to as "fixed-term deposit") serving as
EQUITY SECURITY and pledged to the LENDERS for the purpose of this
Agreement is used for financing the MINIMUM CREDIT,
SPEZIALPAPIERFABRIK is no longer obliged to provide EQUITY SECURITY
under this Agreement and the LOAN AGREEMENT. The LENDERS shall
undertake to release the fixed-term deposit for such use. The
Parties agree that the use of the fixed-term deposit in this way
does not constitute a drawing within the meaning of 3 b) of this
Agreement. The obligation of SPEZIALPAPIERFABRIK to provide the
BORROWER with DM 25 million pursuant to sub-paragraph 3 b) (ii) as
additional equity funds and/or additional subordinated shareholder
loans to prevent bankruptcy or composition proceedings shall remain
unaffected hereby."
3. Sub-paragraphs 6 a), c), f) and g) of the "Agreement concerning
obligations of the shareholders" shall apply mutatis mutandis to
this Amendment Agreement No. 1.
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This Amendment Agreement No. 1 shall be signed in quadruplicate. One copy
each is intended for XXXXXX, SPEZIALPAPIERFABRIK, VERWALTUNGS-GMBH as well
as the Bayerische Hypo- und Vereinsbank AG. Each copy shall be considered
as an original.
Blankenstein, December 13, 2000
-------------------------------------------------------
Xxxxxx International, Inc.
-------------------------------------------------------
Spezialpapierfabrik Blankenstein GmbH
-------------------------------------------------------
Zellstoff- und Papierfabrik Xxxxxxxxx Verwaltungs-GmbH
Blankenstein, December 13, 2000
-------------------------------------------------------
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
acting on its own behalf and as a representative of the following banks:
ABB Export Bank, Zurich
Baden-Wurttembergische Bank, Stuttgart
Banca Monte Dei Paschi Di Siena SpA, Frankfurt / Main
DG Bank, Nurnberg
GZ-Bank AG, Frankfurt am Main
Landesbank Rheinland-Pfalz International S.A., Luxembourg
Sachsen LB, Leipzig
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ANNEX 4
Agreement on granting a facility by way of bank guarantee
(Avalkreditlinie)
of June 6 and June 30, 2000, respectively
between
the BORROWER
and
BAYERISCHE HYPO- UND VEREINSBANK AG
[Letterhead of HypoVereinsbank - Dresden Branch]
To: From:
Zellstoff- und Papierfabrik HypoVereinsbank XX
Xxxxxxxxx GmbH & Co. KG Dresden Branch
-Management- Xxxxxxxxxxxx 0
Xxxxxxxx. 00
D-07366 Blankenstein D-01003 Dresden
Contact: Phone: Date:
Xxxxxxxx Xxxxxx (0000) 0000-000 06.06.2000
Re: Grant of a facility by way of bank guarantee
Dear Mr. Nossol and Xx. Xxxxxx,
We are pleased to provide you with the following facility by way of bank
guarantee:
Amount: DM 5,000,000.00
(in words: DM five million)
which can be used as:
a facility by way of bank guarantee
(Avalkreditlinie) on account
no.: 8592189
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Intended use: The loan shall be used for commercial purposes.
Duration: Until March 31, 2001
Terms: Until further notice we shall charge you for
individual guarantees
up to DM 100,000.00 1.75 % p.a.
up to DM 500,000.00 1.25 % p.a.
up to DM 2,000,000.00 0.75 % p.a.
from DM 2,000,000.00 0.50 % p.a.
Guarantee commission on claim to the credit
facility.
Until further notice we shall charge you an
issuance fee of DM 50.00 for the preparation of the
guarantee.
The accounts shall be balanced at the end of each
quarter.
Collateral: We shall use the existing collateral and/or that
still to be furnished for all claims against you
arising from banking relations as provided in the
security agreements entered into separately or are
still to be entered into.
According to the regulations (S. 18 of the German Banking Act
(Kreditwesengesetz)) a bank granting loans must have the Borrower disclose
its economic situation to the bank, in particular by submission of annual
financial statements - both prior to granting the loan as well as during
the entire duration of the loan arrangement.
As a result of accepting this loan agreement you shall undertake to
regularly send us your annual financial statements provided with legally
valid signatures. The German Federal Banking Supervisory Authority
(Bundesaufsichtsamt fur das Kreditwesen) has set a time limit of nine
months after the date of the balance sheet for the submission of the
annual financial statements, or if such financial statements will have not
yet been completed, for the submission of equivalent documents.
Our General Terms and Conditions shall also apply. These can be inspected
at any branch of our bank, and on request can be sent you to at any time.
Please return the enclosed copy of this letter duly signed to us as an
indication of your consent.
Information provided pursuant to S. 8 of the German Money Laundering Act
(Geldwaschegesetz):
X I am acting/we are acting on our own behalf.
I am acting/we are acting on behalf of other parties. The name
and address of the person/company on whose behalf the loan is
being issued is as follows:
----------------------------------------------------
Please indicate as applicable. Please inform us as quickly as possible in
writing of any changes.
15
We look forward to doing business with you.
Yours truly,
Bayerische Hypo- und Vereinsbank
Aktiengesellschaft
(signature) (signature)
Xxxxxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxx 30, 2000
Zellstoff- und Papierfabrik Xxxxxxxxx GmbH & Co. KG
Zellstoff- und Papierfabrik Xxxxxxxxx Verwaltungsgesellschaft mbH
Annex
Processing note (to be completed by the Bank)
The signature and the submission of identification data pursuant to the
German Fiscal Code/ Money Laundering Act (Abgabenordnung/Geldwaschegesetz)
have been checked and are correct.
(signature)
July 13, 2000 Xxxxxx Xxxxxxxxxxx
--------------------------------------
Signature of Bank, date
16
Annex 6
SECURITY POOLING AGREEMENT
between
ZELLSTOFF- UND PAPIERFABRIK XXXXXXXXX GMBH & CO KG
(hereinafter referred to as "BORROWER"),
SPEZIALPAPIERFABRIK BLANKENSTEIN GMBH
(hereinafter referred to as "SPEZIALPAPIERFABRIK"),
on the one hand
and
BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT
(hereinafter referred to as "HypoVereinsbank" or "SECURITY TRUSTEE")
acting on its own behalf
and as a representative and SECURITY TRUSTEE, respectively, of the
LENDERS of the LOAN AGREEMENT
(as defined in the following)
on the other hand
The BORROWER, the Bayerische Vereinsbank Aktiengesellschaft ("BV") and the
Bayerische Hypotheken- und Wechsel-Bank Aktiengesellschaft ("Hypo-Bank")
or the banks referred to on the signature page of this Agreement
(hereinafter referred to jointly with the HypoVereinsbank as the
"LENDERS") entered on July 6, 1998 into the LOAN AGREEMENT in the amount
of DM 508 Mio., on July 28, 1998 into Amendment Agreement No. 1 to the
LOAN AGREEMENT of July 6, 1998, on November 11, 1998 and November 30,
1998, respectively, into Amendment Agreement No. 2 to the LOAN AGREEMENT
of July 6, 1998, on March 1, 2000 into Amendment Agreement No. 3 to the
LOAN AGREEMENT of July 6, 1998 and on December 13, 2000 Amendment
Agreement No. 4 to the LOAN AGREEMENT of July 6, 1998 (the LOAN AGREEMENT
of July 6, 1998 and the Amendment Agreements Nos. 1 - 4 are referred to
jointly in the following as the "LOAN AGREEMENT").
The BORROWER, SPEZIALPAPIERFABRIK, BV and the Hypo-Bank entered on July
28, 1998 into the Security Pooling Agreement concerning the SECURITY
DOCUMENTS that are to be provided by the BORROWER or SPEZIALPAPIERFABRIK
in connection with the LOAN AGREEMENT (hereinafter referred to as
"SECURITY POOLING AGREEMENT 1998").
The BV and the Hypo-Bank merged on August 31, 1998 to form Bayerische
Hypo- und Vereinsbank AG. All the rights and obligations of BV and Hypo-
Bank under the LOAN AGREEMENT as well
17
as the SECURITY POOLING AGREEMENT 1998 have passed to HypoVereinsbank as a
result of the merger.
In addition to Amendment Agreement No. 4 to the LOAN AGREEMENT, the
BORROWER and HypoVereinsbank entered into the "Agreement on the Agreement
concerning a Hedging Strategy" on December 13, 2000, under which the
BORROWER will enter into HEDGING AGREEMENTS with the HypoVereinsbank (as
defined in Article 1.101 of the LOAN AGREEMENT).
The BORROWER, the LENDERS and the HypoVereinsbank have further agreed in
Amendment Agreement No. 4 to the LOAN AGREEMENT with the consent of the
GUARANTORS that the SECURITY DOCUMENTS (with the exception of the C&L-
AUSFALLBURGSCHAFT) for the claims of the LENDERS from the LOAN AGREEMENT
shall provide collateral ranking pari passu for the claims of the
HypoVereinsbank against the BORROWER from the HEDGING AGREEMENTS to be
entered into in the future.
The BORROWER, the LENDERS and the HypoVereinsbank entered into the Pledge
Agreement concerning the claims of the BORROWER against the
HypoVereinsbank from HEDGING AGREEMENTS (hereinafter referred to as the
"PLEDGE AGREEMENT CONCERNING HEDGING AGREEMENTS").
The BORROWER, the LENDERS, the HypoVereinsbank, SPEZIALPAPIERFABRIK,
ZELLSTOFF- UND PAPIERFABRIK XXXXXXXXX VERWALTUNGS-GMBH and XXXXXX
INTERNATIONAL, INC. further entered into Amendment Agreement No. 1
concerning security agreements on December 13, 2000. In addition,
SPEZIALPAPIERFABRIK, the LENDERS and HypoVereinsbank entered on December
13, 2000 into Amendment Agreement No. 1 concerning the Pledge Agreements
relating to the shares in the BORROWER. Both Amendment Agreements shall be
referred to hereinafter jointly as "SECURITY RIGHT AMENDMENT AGREEMENTS".
On December 13, 2000, Xxxxxx International, Inc., SPEZIALPAPIERFABRIK and
Zellstoff- und Papierfabrik Xxxxxxxxx Verwaltungs-GmbH on the one hand and
HypoVereinsbank on its own behalf and as a representative of the LENDERS
on the other hand entered into Amendment Agreement No. 1 to the "Agreement
concerning obligations of the shareholders" of July 6, 1998.
The parties are aware that the conclusion of this Agreement is a condition
precedent for the coming into effect of Amendment Agreement No. 4 to the
LOAN AGREEMENT.
Having stated this, the SECURITY POOLING AGREEMENT 1998 shall be amended
as follows:
1. Definitions
The terms used and not otherwise defined in this Agreement (including
the preamble) shall have the same meaning as in the LOAN AGREEMENT.
2. Security Rights
2.1 The BORROWER or, as the case may be, certain third parties have
provided the following Security Rights for the BORROWER's obligations
to the LENDERS under the LOAN
18
AGREEMENT as well as for the BORROWER's obligation to the
HypoVereinsbank under the HEDGING AGREEMENTS (amended if applicable
by the SECURITY RIGHT AMENDMENT AGREEMENTS:
- the Assignment Agreement (Project and Delivery Contracts) dated
July 28, 1998;
- the Assignment Agreement (Insurances) dated July 28, 1998;
- the Mortgage Deeds in the amounts of DM 15,000,000.00 and DM
548,000,000.00 dated March 5, 1998 and the Mortgage Purpose
Declarations dated July 28, 1998,
- the Pledge and Title Transfer Agreements of Shares in the BORROWER
(and the shares in Zellstoff- und Papierfabrik Xxxxxxxxx
Verwaltungs-GmbH) dated July 28, 1998,
- the Title Transfer Agreements for MOVABLE PROPERTY dated July 28,
1998,
- the PROCEEDS ACCOUNT Pledge Agreement dated December 13, 2000,
- the DEBT SERVICE RESERVE ACCOUNT Pledge Agreement dated December
13, 2000;
- the INVESTMENT RESERVE ACCOUNT Pledge Agreement dated July 28,
1998;
- the Agreement concerning obligations of the shareholders dated July
6, 1998 as amended by Amendment Agreement No. 1 of December 13,
2000 as well as
- the PLEDGE AGREEMENT CONCERNING HEDGING AGREEMENTS.
In accordance with Articles 19.4.1 (j) and 20.4 of the LOAN AGREEMENT, the
BORROWER has undertaken to assign or, as the case may be, transfer by way
of security from time to time its rights, title and interest under the
insurances to be entered into by the BORROWER in the future, under the
future MATERIAL PROJECT CONTRACTS as well as the future transfer of
MOVABLE PROPERTY and to grant to the LENDERS such further SECURITY RIGHTS
to comply with its negative pledge undertaking contained in Article 19.4.2
(a) of the LOAN AGREEMENT. Under sub-paragraph II. 1 of Amendment
Agreement No. 4 to the LOAN AGREEMENT, the above mentioned SECURITY RIGHTS
shall provide collateral ranking pari-passu for the claims of the
HypoVereinsbank from HEDGING AGREEMENTS to be entered into in the future.
2.2 C&L prepared the C&L-AUSFALLBURGSCHAFT on the basis of the guarantee
decision of April 23, 1998, that is attached to the LOAN AGREEMENT as
an annex, for the obligations of the BORROWER against the LENDERS
under the LOAN AGREEMENT.
2.3 The SECURITY RIGHTS listed in sub-paragraph 2.1 and 2.2 as well as
the SECURITY RIGHTS to be granted in the future shall be referred to
jointly hereinafter as "SECURITY RIGHTS".
3. Purpose of the Security Documents, Retransfer
3.1 The SECURITY RIGHTS shall serve as security for the purposes set out
in the SECURITY DOCUMENTS and in the PLEDGE AGREEMENT CONCERNING
HEDGING AGREEMENTS or shall provide collateral for the claims
described therein respectively.
3.2 After all claims secured in accordance with sub-paragraph 3.1 have
been satisfied, the LENDERS and the HypoVereinsbank (or the SECURITY
TRUSTEE on their behalf, respectively) shall retransfer the SECURITY
RIGHTS included in this Security Pooling
19
Agreement, that have not been used by them, to the BORROWER or to the
respective third party provider of such SECURITY RIGHTS. This shall,
however, not apply if the LENDERS and the HypoVereinsbank (or the
SECURITY TRUSTEE, respectively) are obliged by law to retransfer any
SECURITY RIGHTS or any excess proceeds to a third party.
3.3 The EQUITY SECURITY is to be released in accordance with the
provisions of 3 i) of the Agreement concerning obligations of the
shareholders of July 6, 1998 as amended by Amendment Agreement No. 1
of December 13, 2000.
4. Powers of Security Trustee/Agent
4.1 HypoVereinsbank, pursuant to Article 24 of the LOAN AGREEMENT, has
been appointed SECURITY TRUSTEE for, or representative of the
LENDERS, respectively, in connection with the SECURITY RIGHTS granted
or to be granted by the BORROWER or SPEZIALPAPIERFABRIK
(HypoVereinsbank in both capacities hereinafter referred to as the
"SECURITY TRUSTEE"). In relation to such appointment, each LENDER
hereby authorizes the SECURITY TRUSTEE:
(a) to make or receive on its behalf any declarations required
for the establishment, administration and management or
liquidation of the SECURITY RIGHTS and to exercise such
rights and powers, remedies, and discretionary acts as are
specifically conferred upon the SECURITY TRUSTEE by the LOAN
AGREEMENT, this Security Pooling Agreement and/or the
SECURITY DOCUMENTS together with such powers and discretions
as are reasonably incidental thereto; and
(b) to take such action on its behalf as may from time to time
be authorized under or in accordance with the LOAN
AGREEMENT, this Pooling Agreement and/or the SECURITY
DOCUMENTS.
4.2 The SECURITY TRUSTEE shall have no duties, obligations or liabilities
to any of the LENDERS beyond those expressly provided for in the LOAN
AGREEMENT, this Security Pooling Agreement and/or any of the SECURITY
DOCUMENTS.
4.3 Each of the LENDERS hereby authorizes the SECURITY TRUSTEE:
(a) to enter into and execute each of the SECURITY DOCUMENTS
corresponding substantially with the respective forms set
out in the Annexes to the LOAN AGREEMENT; and
(b) in each and every case, to hold and to maintain the SECURITY
RIGHTS thereby created for itself (also, with the exception
of the C&L AUSFALLBURGSCHAFT, in its capacity as assignee
for its claims under the HEDGING AGREEMENTS) and as agent
and/or trustee for such LENDER in the manner contemplated by
the LOAN AGREEMENT, this
20
Pooling Agreement or, as the case may be, by the relevant
SECURITY DOCUMENT.
4.4 Subject to sub-paragraph 4.5 below, the SECURITY TRUSTEE in the
exercise of any right or power as well as to any matter not expressly
provided for by this Security Pooling Agreement or in any SECURITY
DOCUMENT, may act or refrain from acting in accordance with the
instructions of the MAJORITY OF LENDERS and shall be fully protected
in so doing. In the absence of such instructions, the SECURITY
TRUSTEE may act or refrain from acting at its own discretion and any
such decision made by the SECURITY TRUSTEE shall be binding on all
the LENDERS. Subject to sub-paragraph 4.5 below, any modification or
amendment to this Security Pooling Agreement or to any of the
SECURITY DOCUMENTS shall be in writing and requires the consent of
the BORROWER (or, as long as the EQUITY SECURITY is not re-
transferred to SPEZIALPAPIERFABRIK as provided for in 3.3, of
SPEZIALPAPIERFABRIK, respectively) as well as of the MAJORITY OF
LENDERS.
4.5 Except with the prior written consent of each LENDER and the
GUARANTORS - and with the exception of the case provided for in sub-
paragraph 3.3 -, the SECURITY TRUSTEE on any modifications shall have
no authority to agree with the BORROWER or SPEZIALPAPIERFABRIK on any
amendment to, or on any other actions in relation to, any of the
SECURITY DOCUMENTS that would have the effect on the BORROWER (or, as
long as the EQUITY SECURITY is not re-transferred to
SPEZIALPAPIERFABRIK as provided for in 3.3, on SPEZIALPAPIERFABRIK,
respectively) of releasing the security created by any of the
SECURITY RIGHTS, unless such release is required by law or provided
for in the SECURITY DOCUMENTS or if such release is effected at the
request of the BORROWER for the purpose of a sale permissible under
Article 19.4.2 (b) of the LOAN AGREEMENT.
4.6 The SECURITY TRUSTEE shall be entitled to enforce any rights under
this Security Pooling Agreement (thereby acting on its own behalf,
also in its capacity as assignee under the HEDGING AGREEMENTS, and on
behalf of the LENDERS) as well as the SECURITY DOCUMENTS against the
BORROWER acting on its own behalf and/or on behalf of
SPEZIALPAPIERFABRIK.
4.7 The LENDERS are aware that when HypoVereinsbank is exercising a right
or power, as well as regarding other matters relating to the SECURITY
RIGHTS, it shall also act in its own interests, in its capacity as
LENDER under the LOAN AGREEMENT as well as assignee under the PLEDGE
AGREEMENT CONCERNING HEDGING AGREEMENTS as well as under the SECURITY
RIGHT AMENDMENT AGREEMENTS. The SECURITY TRUSTEE shall be exempt from
the restrictions set out in S. 181 of the German Civil Code
(Burgerliches Gesetzbuch). If a decision of the MAJORITY OF LENDERS
is required in this regard, the claims of the HypoVereinsbank from
the HEDGING AGREEMENTS will not be taken into account.
21
5. Realization of Security Rights, Distributions of Proceeds
With respect to the realization of the SECURITY RIGHTS the respective
provisions of the SECURITY DOCUMENTS shall apply. After the LOAN
AGREEMENT has been terminated pursuant to Article 22 thereof, the
proceeds resulting from the realization of the SECURITY RIGHTS (with
the exception of the proceeds from the C&L Ausfallburgschaft) shall
be applied in accordance with the following order of priority:
- first, in or towards payment of all costs, charges, fees and
expenses of or incurred by the SECURITY TRUSTEE under or pursuant
to the SECURITY DOCUMENTS and/or this Security Pooling Agreement;
- secondly, in or towards payments of any arrears of interest under
the LOAN AGREEMENT and the HEDGING AGREEMENTS as well as in or
towards payments of any commission and costs and expenses
reimbursable under the LOAN AGREEMENT and the HEDGING AGREEMENTS
provided that these were not paid/reimbursed on maturity;
- thirdly, in payment of all other interest, payable under the LOAN
AGREEMENT and the HEDGING AGREEMENTS;
- fourthly, in payment of the amount of the principal of the LOAN
AGREEMENT and any other sum due under the LOAN AGREEMENT and the
HEDGING AGREEMENTS;
- fifthly, in payment of the surplus to the BORROWER or other
person entitled to it.
5.2 Sub-paragraph 5.1 shall apply mutatis mutandis to the distribution of
the proceeds of the C&L AUSFALLSBURGSCHAFT, provided that a
distribution of the proceeds to the HypoVereinsbank is not made as
discharge of claims from the HEDGING AGREEMENTS.
6. Costs, Taxes, Compensation
6.1 The BORROWER shall reimburse the SECURITY TRUSTEE of all costs,
charges, fees and expenses incurred by it in connection with the
SECURITY DOCUMENTS and this Security Pooling Agreement. If and to
the extent that such costs, charges, fees and expenses are not
recoverable from the BORROWER, they will be allocated to the LENDERS
on a pro rata basis according to their respective LENDER's
Commitment.
6.2 The BORROWER shall pay to the SECURITY TRUSTEE a fee as agreed in
Article 25.3 of the LOAN AGREEMENT.
22
7. Information
Upon request, the SECURITY TRUSTEE shall furnish copies of the
SECURITY DOCUMENTS to the LENDERS and shall inform the LENDERS of the
contents of any material notice, authentication or other document
received by the SECURITY TRUSTEE from the BORROWER or
SPEZIALPAPIERFABRIK under or pursuant to any SECURITY DOCUMENT. In
addition, any material actions authorized and effected by the
SECURITY TRUSTEE in accordance with sub-paragraph 4.4 shall be
promptly notified to each LENDER by the SECURITY TRUSTEE.
8. Miscellaneous
8.1 This Security Pooling Agreement is entered into for an indefinite
period of time and shall remain in force as long as any amount under
the LOAN AGREEMENT remains outstanding.
8.2 The form and content of this Security Pooling Agreement, as well as
the rights and obligations of the LENDERS, HypoVereinsbank in its
capacity as assignee under the HEDGING AGREEMENTS, the BORROWER and
SPEZIALPAPIERFABRIK shall be subject to and construed in accordance
with the laws of the Federal Republic of Germany in every respect.
Place of performance of this Agreement shall be Munich. The
applicable place of jurisdiction for all disputes arising out of or
in connection with this Agreement shall be Munich. The SECURITY
TRUSTEE may however, at its option, commence proceedings against the
BORROWER also before any other court of law in which assets of the
BORROWER are situated.
8.3 Should any provision of this Security Pooling Agreement be or become
wholly or partly invalid, then the remaining provisions shall remain
valid. Invalid provisions shall be construed in accordance with the
intent of the parties and the purpose of this Security Pooling
Agreement.
8.4 The LENDERS are entitled to transfer their respective rights and
obligations under this Pooling Agreement to any such party, to which
portions of the LOAN FACILITY are transferred pursuant to Article 30
of the LOAN AGREEMENT. In addition, the transfer of the rights and
obligations of HypoVereinsbank under this Security Pooling Agreement
requires the consent of the MAJORITY OF LENDERS.
8.5 Any modification and amendment to this Security Pooling Agreement
shall be made in writing.
8.6 In addition, the provisions of Article 23 of the LOAN AGREEMENT in
relation to the rights and obligations of the FACILITY AGENT shall
apply mutatis mutandis.
23
This Agreement shall be signed in triplicate. One copy each is intended
for the BORROWER, SPEZIALPAPIERFABRIK and the HypoVereinsbank. Each copy
shall be considered as an original.
Blankenstein, December 13, 2000
---------------------------------------------------
Zellstoff- und Papierfabrik Xxxxxxxxx GmbH & Co KG
---------------------------------------------------
Spezialpapierfabrik Blankenstein GmbH
---------------------------------------------------
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
acting on its own behalf and as a representative of the following banks:
ABB Export Bank, Zurich
Baden-Wurttembergische Bank, Stuttgart
Banca Monte Dei Paschi Di Siena SpA, Frankfurt / Main
DG Bank, Nurnberg
GZ-Bank AG, Frankfurt am Main
Landesbank Rheinland-Pfalz International S.A., Luxembourg
Sachsen LB, Leipzig
