EXHIBIT 10.3
SHARE PLEDGE AGREEMENT
dated September 15, 1999
between
FIBERMARK BETEILIGUNGS GMBH
AND
FIBERMARK GMBH
(the "Pledgors")
on the one hand
and
BAYERISCHE HYPO- UND VEREINSBANK AG
(the "Pledgee")
on the other hand
TABLE OF CONTENTS
Page
Art. 1 Definitions 3
Art. 2 Pledge 4
Art 3 Security Purpose 5
Art. 4 Pledgor's Rights 5
Art. 5 Pledgor's Representations 6
Art. 6 Pledgee's Right of Realisation 6
Art. 7 Expiration of Pledge 6
Art. 8 Waiver 7
Art. 9 Duration and Independence 7
Art. 10 Notices, Language 7
Art. 11 Partial Invalidity 8
Art. 12 Miscellaneous 8
WHEREAS, Bayerische Hypo- und Vereinsbank Aktiengesellschaft shall provide
FiberMark GmbH (the "Borrower") with a six year loan facility in the amount of
DM 28,500,000 (in words: Deutsche Marks twentyeight million fivehundredthousand)
for the purpose of financing the acquisition of Papierfabrik Lahnstein GmbH; and
WHEREAS, the Pledgors have concluded a share purchase agreement (the
"Acquisition Agreement") for the purchase of 3 (three) shares in Papierfabrik
Lahnstein GmbH with a total nominal value of DM 20,000,000 (Deutsche Marks
twenty million) and
WHEREAS, Bayerische Hypo- und Vereinsbank Aktiengesellschaft acknowledges that
the Pledgors will pursuant to the provisions of the Acquisition Agreement only
acquire full ownership of the Shares on the Closing Date (as defined in the
Acquisition Agreement); and
WHEREAS, the Pledgors shall pledge their shares in Papierfabrik Lahnstein GmbH
to Bayerische Hypo- und Vereinsbank AG as security for the Borrower's payment
obligations under the Loan Agreement I and the Loan Agreement II, and
FiberMark Beteiligungs GmbH, FiberMark GmbH and Bayerische Hypo- und Vereinsbank
AG appear before Xx. Xxxxx Xxxxxxx, public notary in Lucerne, Switzerland, to
execute this Share Pledge Agreement as a deed as follows:
ART. 1
DEFINITIONS
In this Agreement the following terms shall have the following meaning:
1.1 "BGB" shall mean Burgerliches Gesetzbuch, being the German Civil Code.
1.2 "Company" shall mean Papierfabrik Lahnstein GmbH.
1.3 "Declared Default" shall mean any event of default occurring under the
Loan Agreements
1.4 "Enforcement Event" shall mean the occurrence of a Declared Default which
is not, if capable of remedy, remedied within 10 Business Days after
written notice from the Pledgee to the Pledgors that it has the intention
to realise the Pledge.
1.5 "Loan Agreement I" means the loan agreement entered into by the Borrower
and the Pledgee on January 7, 1998.
1.6 "Loan Agreement II means the loan agreement entered into by the Borrower
and the Pledgee on September 15, 1999. Loan Agreement I and Loan Agreement
II shall be referred to as the Loan Agreements.
1.7 "Pledge" shall mean the pledge constituted hereunder.
1.8 "Pledgee" shall mean Bayerische Hypo- und Vereinsbank Aktiengesellschaft.
1.9 "Pledgors" shall mean FiberMark Beteiligungs GmbH and FiberMark GmbH, and
"Pledgor" shall mean each one of them.
1.10 "Proceeds" means the proceeds resulting from the enforcement of the
Pledge.
1.11 "Secured Liabilities" means all present and future obligations and
liabilities (whether actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever) which are now or have been
or at any time after the date hereof may be or become by way of novation
or otherwise due, owing or incurred by the Borrower to the Pledgee under
the Loan Agreements as amended, varied or supplemented from time to time.
1.12 "Shares" means the shares set out in Article 2. 1. .
1.13 All capitalised terms used herein and not otherwise defined herein shall
bear the same meaning herein as ascribed to them in the Loan Agreement II,
unless the context otherwise requires.
ARTICLE 2
PLEDGE
2.1 SHARES
The Pledgors will hold as from the Closing Date the following 3 shares in
the Company:
--------------------------------------------------------------------------------
Column A: Column B:
Number of Shares Nominal value of Shares:
--------------------------------------------------------------------------------
1 DM 50,000
--------------------------------------------------------------------------------
1 DM 70,000
--------------------------------------------------------------------------------
1 DM 19,880,000
--------------------------------------------------------------------------------
2.2 CONSTITUTION OF THE PLEDGE
The Pledgors hereby pledge the Shares specified in Article 2.1 to the
Pledgee.
The Pledgors furthermore pledge to the Pledgee any and all additional
future shares in the capital of the Company they may acquire in the future
in the event of an increase of the capital of the Company or otherwise.
The Pledgee herewith accepts the pledges.
2.3 ANCILLARY RIGHTS
Subject to the provisions set forth in Article 4 below, all dividend
rights ("Ausschuttungszahlungen") and other rights and monetary claims
associated with the Shares are pledged together with the Shares to the
Pledgee as security (e.g. payment made upon the liquidation of the
company; "Liquidationserlos bei Auflosung der Papierfabrik Lahnstein
GmbH").
The Pledgee herewith accepts the pledges.
2.4 ADDITIONAL SECURITY
The Pledge is in addition, and without prejudice to, any other security
the Pledgee may now or hereafter hold in respect of the Secured
Liabilities.
ARTICLE 3
SECURITY PURPOSE
The Pledge is constituted in order to secure the prompt and complete
satisfaction of any and all Secured Liabilities.
ARTICLE 4
PLEDGOR'S RIGHTS
4.1 ENTITLEMENT TO DIVIDENDS
Unless the Pledgee gives notice to the contrary which it may only do
whilst a Declared Default subsists, the Pledgors shall have the right to
receive and retain without limitation all dividend payments and all other
payments in respect of the Shares pledged by virtue of Article 2 above.
When such Declared Default no longer subsists the Pledgors shall again be
entitled to receive and retain without limitation all dividend payments
and all other payments in respect of the Shares pledged by virtue of
Article 2.
4.2 VOTING RIGHTS
The voting rights pertaining to the Shares remain with the Pledgors.
ARTICLE 5
PLEDGOR'S REPRESENTATIONS
The Pledgors hereby represent and warrant to the Pledgee that as of the Closing
Date:
(a) OWNER OF THE SHARES
The Pledgors will be the sole owners of the Shares as from the Closing
Date, and are duly entitled to grant the Pledge to the Pledgee.
(b) NO THIRD PARTY RIGHTS
The Pledgors have not granted any mortgage, hypothecation, pledge, lien,
charge, assignment, transfer of title or other security rights over any of
the Shares to any other third party prior to the date of this Agreement.
ARTICLE 6
PLEDGEE'S RIGHTS OF REALISATION
6.1 REALISATION
Whilst an Enforcement Event subsists, the Pledgee may enforce the Pledge
in accordance with the relevant rules of the BGB, provided that the
Secured Liabilities have not been unconditionally and irrevocably
satisfied and discharged in full.
6.2 DUE CARE AND ATTENTION
The Pledgee will realise the Pledge only to the extent necessary to
discharge in full the Secured Liabilities. The Pledgee shall at all times
until the full and complete satisfaction of all the Secured Liabilities
take into consideration the legitimate interest of the Pledgors in
exercising its rights under this Agreement.
6.3 SURPLUS
After the complete unconditional, irrevocable and full payment and
discharge of all Secured Liabilities any remaining Proceeds resulting from
the enforcement of the Pledge shall be retransferred to the Pledgors.
ARTICLE 7
EXPIRATION OF PLEDGE
Upon the full, final, unconditional and irrevocable payment and discharge
of all Secured Liabilities the Pledge shall automatically expire
("erloschen"). The Pledgee shall, at the request and at the cost of the
Pledgors, take all such steps as the Pledgors may reasonably require in
order to effect such expiration.
ARTICLE 8
WAIVER
No failure to exercise, nor any delay in exercising, on the part of the
Pledgee, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right
or remedy. The rights or remedies provided hereunder are cumulative and
not exclusive of any rights or remedies whether provided by law or
otherwise.
ARTICLE 9
DURATION AND INDEPENDENCE
9.1 DURATION
This Agreement shall, unless otherwise agreed between the parties, remain
in full force and effect until complete, unconditional and irrevocable
payment and discharge in full of the Secured Liabilities. The Pledge shall
not cease to exist if any payments made in satisfaction of the Secured
Liabilities have only temporarily discharged the Secured Liabilities.
9.2 INDEPENDENCE
This Agreement is independent from any other security or guarantee which
may have been or will be given to the Pledgee with respect to any
obligation of the Pledgors. None of such other securities shall prejudice,
or shall be prejudiced by, or shall be merged in any way with, this
Agreement.
ARTICLE 10
NOTICES, LANGUAGE
10.1 Any correspondence, documentation and communication between the parties to
this Agreement shall be in writing, by mail, or by telefax; the latter
case requiring confirmation by mail.
10.2 Without prejudice to any future change of address, all correspondence from
the Pledgors to the Pledgee shall be sent to the Pledgee at the following
address:
Bayerische Hypo und -Vereinsbank Aktiengesellschaft
Xx Xxxxxxxxxx 0/XXX 0
00000 Xxxxxxx
Attention: Xx. Xxxxxx Xxxxxxxxxxxx
Fax: x00-00-00000000
All correspondence from the Pledgee to the Pledgors shall be sent to the
following address:
FiberMark Beteiligungs GmbH
x/x XxxxxXxxx Xxxxxxx XxxX & Xx.
Xxxxxxxxx: Xx. Xxxxxx Xxxxxxx
Fax: x00-0000-000000 (with copy to Mr. Xxxxx Xxxxx,
Fax: x000-000-0000000)
FiberMark GmbH
c/o FiberMark Xxxxxxx GmbH & co.
Xxxxxxxxx Xxxxxxx 00
00000 Xxxxxxxxxxx-Xxxxxxxxx
Attention: Xx. Xxxxxx Xxxxxxx
Fax: x00-0000-000000 (with copy to Mr. Xxxxx Xxxxx,
Fax: x000-000-0000000)
10.3 LANGUAGE
This Agreement is made in the English language. For the avoidance of
doubt, the English language version of this Agreement shall prevail over
any translation of this Agreement. However, where a German translation of
a word or phrase appears in the text of this Agreement, the German
translation of such word or Phrase shall prevail.
Any notice given under or in connection with this Agreement shall be in
the English language.
ART. 11
PARTIAL INVALIDITY
Should any provision of this 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 Agreement.
The Parties hereby agree to replace, to the extent possible, any provision
of this Agreement which is or becomes illegal or invalid with a legal and
valid provision which achieves to the fullest extent possible the
commercial intention of the Parties.
ART. 12
MISCELLANEOUS
12.1 AMENDMENTS
Any alteration or amendment to this Agreement shall be in writing. Verbal
agreements shall have no legal effect.
12.2 GOVERNING LAW
The form and contents of this Agreement, as well as the rights and
obligations of the Pledgor and the Pledgee shall be construed according to
the laws of the Federal Republic of Germany in every respect.
12.3 JURISDICTION
The applicable place of jurisdiction for all disputes arising out of or in
connection with this Agreement shall be Munich. The Pledgee may however,
at its option,
commence proceedings before any other competent court of law in the
Federal Republic of Germany and/or in any other country in which assets of
the Pledgors are situated. In the latter case the laws of the Federal
Republic of Germany shall, pursuant to Art. 12.2, also be applicable.
12.4 COUNTERPARTS
This Agreement has been executed in the English language in 3 (three)
counterparts. One copy shall be provided to each of the Pledgors and to
the Pledgee. Each executed copy shall have the effect of an original.
SEPTEMBER 15,1999
FiberMark Beteiligungs GmbH
.....................................................................
FiberMark GmbH
.....................................................................
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
......................................................................
(in its capacity as Pledgee)
SEPTEMBER 15, 1999
.....................................................................
(Public notary)
