EXHIBIT 10.1
L O A N A G R E E M E N T
in the amount of
DM 28,500,000
between
FIBERMARK GMBH (THE "BORROWER")
on the one hand
and
BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT
(hereinafter referred to as "Arranger", "Lender" or "Facility Agent",
as the case may be)
on the other hand
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TABLE OF CONTENTS
PAGE
Art. 1 Definitions 4
Art. 2 Loan Facility 10
Art. 3 Purpose 10
Art. 4 Conditions Precedent 10
Art. 5 Drawdown 12
Art. 6 Term 13
Art. 7 Repayment 14
Art. 8 Prepayment and Cancellation 15
Art. 9 Interest 16
Art. 10 Interest Periods 16
Art. 11 Intentionally Omitted
Art. 12 Default Interest and Indemnification 17
Art. 13 Accounts 18
Art. 14 Payments 18
Art. 15 Illegality 19
Art. 16 Increased Costs 20
Art. 17 Tax Gross-Up and Mitigation 21
Art. 18 Representations and Warranties 21
Art. 19 Covenants 24
Art. 20 Additional Collateral 27
Art. 21 Events of Default 28
Art. 22 Rights and Obligations of Facility Agent 30
Art. 23 Fees 34
3
Art. 24 Expenses 35
Art. 25 Stamp Duties 35
Art. 26 Waivers; Remedies Cumulative 35
Art. 27 Notices 36
Art. 28 Assignments, Transfer, Substitution 36
Art. 29 Currency Indemnity 37
Art. 30 Pro Rata Sharing 38
Art. 31 Set-off 39
Art. 32 Miscellaneous 39
Annexes:
Drawdown Request Annex 1
Notice to Lenders of Advance Due Annex 2
Group Structure Chart Annex 3
Pledge Agreement over Shares of Papierfabrik Lahnstein Annex 4
GmbH
Pledge Amendment Agreement in relation to FiberMark Annex 5
Xxxxxxx GmbH & Co.
Loan Amendment Agreement in relation to the Loan Annex 6
Agreement between the Borrower and the Lender dated
January 7, 1998
Interest Rates Annex 7
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PREAMBLE
WHEREAS, Bayerische Hypo- und Vereinsbank Aktiengesellschaft shall provide 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 Facility will be granted in six tranches, provided that all
tranches have to be drawn down by the Borrower on the same day and it being
understood that the tranches will have six different repayment dates
whereas, the Borrower acknowledges that Bayerische Hypo- und Vereinsbank
Aktiengesellschaft will initially grant the Facility in its capacity as
"Original Lender". The Borrower undertakes to support and assist the Original
Lender in the syndication process. References to the Arranger and the Facility
Agent in this Agreement shall be read as references to the Original Lender until
such date where another bank or financial institution becomes party to this
Agreement pursuant to Art. 27;
The parties agree as follows:
ART. 1
DEFINITIONS
In this Agreement the following terms shall have the following meaning:
1.1 "Account" shall mean the account No. 0000000 of the Borrower with
Bayerische Hypo- und Vereinsbank Aktiengesellschaft, Rosenheim Branch,
Banking Code 00000000, to which each Lender's Share of the Advance is
to be credited by the Lenders and into which monies owed from time to
time by the Borrower pursuant to this Agreement shall be paid or such
other account as shall be notified to the Borrower and the Lenders by
the Facility Agent.
1.2 "Acquisition Agreement" shall mean the sale and purchase agreement as
dated September 15, 1999 between Sihl Beteiligungsgesellschaft mbH and
the Borrower and FiberMark Beteiligungs GmbH.
1.3 "Advance" shall mean the amount drawn down by the Borrower under
Tranche 1, Tranche 2, Tranche 3, Tranche 4, Tranche 5 or Tranche 6
pursuant to the Drawdown Request under this Loan Facility or, depending
on the context and if more than one Advance has been made, the
principal sum outstanding as a result of such drawdowns.
1.4 "Agreement" shall mean this agreement including all its annexes.
1.5 "Arranger" shall mean Bayerische Hypo- und Vereinsbank
Aktiengesellschaft.
1.6 "Availability Period" shall mean the period from the date of this
Agreement until September 30, 1999.
1.7 "Borrower" shall mean FiberMark GmbH.
1.8 "Business Day" shall mean any day on which commercial banks and foreign
exchange markets in Munich and London are open for business.
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1.9 "Closing Date" shall mean the date defined as closing date in the
Acquisition Agreement.
1.10 "Deutsche Marks" or "DM" shall mean Deutsche Marks which is at the date
of this Agreement the legal tender in the Federal Republic of Germany.
1.11 "Drawdown Date" shall mean the date specified in the Drawdown Request
pursuant to Art. 5.2 on which the Lenders shall make available the
requested Advance as specified in Art. 5.4.
1.12 "Drawdown Request" shall mean a notice of borrowing substantially
in the form as attached as Annex 1.
1.13 "EBITDA" shall mean, in respect of any period, the consolidated
ordinary earnings ("Ergebnis der gewohnlichen Geschaftstatigkeit"
pursuant to Xxxxxxx 000 Xxxx. 0, Xx. 00 XXX) of the Group plus
interest ("Zinsen und ahnliche Aufwendungen" pursuant to ss. 275
Sect. 2, Nr. 13 HGB) and depreciation and amortisation
("Abschreibungen auf immaterielle Vermogensgegenstande des
Anlagevermogens und Sachanlagen sowie auf aktivierte Aufwendungen
fur die Ingangsetzung und Erweiterung des Geschaftsbetriebes"
pursuant to Section 275 Sect. 2, Nr. 7 a HGB) during such period.
1.14 "Encumbrance" shall mean any mortgage, hypothecation, pledge, lien,
charge, assignment, transfer of title or conveyance over any of the
Borrower's present or future assets for the purpose of securing any
Indebtedness of the Borrower or any other member of the Group and any
other security agreement or arrangement.
1.15 "Equity " shall mean, at any time, on a consolidated basis of the
Group the equity determined in accordance with Section 266 Sect. 3
A. HGB plus any shareholder loans (being accompanied by a
subordination and loan retention agreement addressed to the Lenders
in a form acceptable to the Facility Agent);
but adjusted by:
(a) deducting any outstanding capital ("Ausstehende
Einlagen" pursuant to Xxxxxxx 000 Xxxx. 0, X. 0 XXX)
(x) deducting any amount attributable to a revaluation (write
ups) of assets pursuant to Section 280 HGB and
(c) deducting any amount attributable to claims any member
of the Group has against the Parent and its subsidiaries
not being member of the Group, as far as those claims are
shown in the balance sheets as "Forderungen gegen
verbundene Unternehmen" or, as the case may be,
"Forderungen gegen Unternehmen, mit denen eine
Beteiligungsverhaltnis besteht" pursuant to Section 266
Sect. 2 B. II. 2 and 3 HGB as well as "Finanzanlagen"
pursuant to Section 266 Sect. 2 A. III. HGB).
1.16 "Equity Ratio" shall mean the ratio of:
(a) the amount equal to the Equity; and
(b) the amount equal to the total assets of the Group on a
consolidated basis ("Bilanzsumme").
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1.17 "Event of Default" shall have the meaning as given to it in Art. 21.
1.18 "Facility Agent" shall mean Bayerische Hypo- und Vereinsbank
Aktiengesellschaft or such other bank as may from time to time be
appointed in its place pursuant to the provisions of Art. 22.14.
1.19 "Final Maturity Date" shall mean the sixth anniversary of the
Drawdown Date
1.20 "Group" shall mean the Borrower, FiberMark Beteiligungs GmbHand their
direct and indirect material subsidiaries from time to time.
1.21 "Group Structure Chart" shall mean the chart in the form as attached as
Annex 3.
1.22 "Guarantee" means any obligation of a Person to pay the Indebtedness of
another Person, including without limitation:
(a) an obligation to pay or purchase such Indebtedness;
(b) an obligation to lend money or to purchase or subscribe shares
or other securities or to purchase assets or services in order
to provide funds for the payment of such Indebtedness; or
(c) any other agreement to be responsible for such Indebtedness.
1.23 "HGB" shall mean Handelsgesetzbuch, being the German Commercial Code.
1.24 "Increased Costs" shall have the meaning as defined in Art. 16.
1.25 "Indebtedness" ("Verschuldung")shall mean any indebtedness for borrowed
money or any Guarantee or other indemnity in respect of any
Indebtedness.
1.26 "Interest Cover Ratio" shall mean the ratio of EBITDA to Total Interest
Expenses.
1.27 "Interest Payment Date" shall mean the last day of an Interest Period
or such other date as provided for in the provisions of Art. 10.2.
1.28 "Interest Period" shall have the meaning given to it in Art. 10.
1.29 "Interest Rate" shall mean the interest rate determined for each
Tranche by the Facility Agent prior to the date of this Agreement by
concluding forward rate agreements; these interest rates are set out in
Annex 7 to this Agreement.
1.30 "Judgement Currency" shall have the meaning given to it in Art. 29.1.
1.31 "Legal Changes" shall have the meaning given to it in Art. 15, unless
otherwise specified in this Agreement.
1.32 "Lender" or "Lenders", as the case may be, shall mean Bayerische Hypo-
und Vereinsbank Aktiengesellschaft and any other bank or financial
institution to which Bayerische Hypo- und Vereinsbank
Aktiengesellschaft or any other Lender shall have assigned or
transferred all or any part of its rights, benefits and obligations
under this Agreement in accordance with Art. 28.3., it being
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understood that the choice of any lender bank by the Facility Agent
requires the Borrower's approval.
1.33 "Lender's Commitment" shall mean with respect to Bayerische Hypo- und
Vereinsbank Aktiengesellschaft, at the date of signing this Agreement,
the amount of DM 28,500,000, or, from time to time, the Lender's
commitment from time to time plus each amount assigned or transferred
to any further Lender in accordance with Art. 27.3.
1.34 "Lender's Share" shall mean the ratio of a Lender's Commitment to the
aggregate of all Lender's Commitments from time to time.
1.35 "Leverage Ratio" shall mean the ratio of Net Debt to EBITDA.
1.36 "Loan Facility" or "Facility" shall have the meaning given to it in
Art. 2.1.
1.37 "Loan Agreement I" shall mean the loan agreement entered into by
the Borrower and the Lender on January 7, 1998.
1.38 "Majority Lenders" shall, as long as no Advance has been drawn down,
mean a majority of 66 2/3 % of the Lenders, in relation to the sum
total of the Loan Facility, and, after Advance has been drawn down, a
majority of 66 2/3 % of the Lenders, in relation to the total of the
outstanding Advance. As long as Bayerische Hypo- und Vereinsbank
Aktiengesellschaft will remain the only Lender under this Agreement,
its decision will substitute the decision by the Majority Lenders if
and when required in this Agreement.
1.39 "Net Debt" shall mean on a consolidated basis of the Group Total
Debt less cash assets ("Schecks, Kassenbestand, Bundesbank- und
Postgiroguthaben, Guthaben bei Kreditinstituten" pursuant to Section
266 Sect.2 B. IV. HGB).
1.40 "Notice of Default" shall have the meaning given to it in Art. 22.6.
1.41 "Original Financial Statement" or "Original Financial Statements"
shall mean, as the case may be, the audited or, if no audit has been
made, the unaudited fiscal year-end statements including the balance
sheet, the profit and loss account and the certified auditor's
report, if any, of the Parent and Papierfabrik Lahnstein GmbH for
the fiscal years 1997 and 1998, the preliminary balance sheet and
profit and loss account as of July 31 1999 of Papierfabrik Lahnstein
GmbH and as to the Borrower and FiberMark Beteiligungs GmbH the
audited fiscal year-end statements including the balance sheet, the
profit and loss account and the certified auditor's report for the
fiscal year 1998.
1.42 "Original Lender" shall mean Bayerische Hypo- und Vereinsbank
Aktiengesellschaft
1.43 "Parent" shall mean FiberMark Inc., Brattleboro, Vermont, United States
of America.
1.44 "Permitted Encumbrances" shall mean
(i) Encumbrances in relation to Indebtedness already in existence
at the date of signing this Agreement; or
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(ii) Encumbrances arising by operation of law or in the ordinary
course of business; or
(iii) Encumbrances attaching to assets acquired subsequent to the
signing of this Agreement insofar as the Encumbrance secures
the purchase price of the asset; or
(iv) such other Encumbrances as may be created with the prior
written consent of the Majority Lenders, which consent shall
not be unreasonably withheld.
1.45 "Person" shall mean an individual, corporation, partnership, joint
venture, trust, unincorporated organisation or any other legal entity
or a national state or any agency or political subdivision thereof,
whether or not having a separate legal personality.
1.46 "Refunding Bank" shall have the meaning given to it in Art. 30.3.
1.47 "Repayment Dates" shall mean the dates as specified in the schedule
contained in Art. 7.
1.48 "Repayment Amount " shall have the meaning given to it in Art. 7.
1.49 "Share Pledge Agreement" shall mean the share pledge agreement dated
January 7, 1998 between zetaphoenicis Beteiligungs GmbH (now: FiberMark
GmbH) and thetaphoenicis Beteiligungs GmbH (now:
FiberMark Beteiligung GmbH) and the Lender.
1.50 "Taxes" (which term shall include "Taxation") shall mean all current or
future taxes, duties, charges or official fees of any kind, including
any interest, fines or penalties and all payments in relation to such
current or future taxes, duties, charges or official fees of any kind.
1.51 "Total Debt" shall mean on a consolidated basis of the Group the
total amounts of debts arising from bonds ("Anleihen" pursuant to
Section 266 Sect. 3. C. 1 HGB), bank loans including capital
expenditure facilities and working capital facilities
("Verbindlichkeiten gegenuber Kreditinstituten" pursuant to Section
266 Sect. 3. C. 2 HGB) and obligations arising under promissory
notes ("Verbindlichkeiten aus der Annahme gezogener Wechsel und der
Ausstellung eigener Wechsel" pursuant to Section 266 Sect. 3. C. Nr.
5 HGB).
1.52 "Total Interest Expenses" shall mean, in relation to any period, the
aggregate of all interest, fees, commissions and other costs, expenses
or charges accrued due from any member of the Group (other than to the
Parent or any other member of the Group) in respect of Indebtedness of
any member of the Group, including interest on shareholder loans as far
as such interests have been paid to the Parent during such period, less
interest accrued during such period on bank's deposit held by any
member of the Group.
1.53 "Tranche 1" shall mean the amount which may be drawn down by the
Borrower as an Advance pursuant to a Drawdown Request and having a term
of one year.
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1.54 "Tranche 2" shall mean the amount which may be drawn down by the
Borrower as an Advance pursuant to a Drawdown Request and having a term
of two years.
1.55 "Tranche 3" shall mean the amount which may be drawn down by the
Borrower as an Advance pursuant to a Drawdown Request and having a term
of three years.
1.56 "Tranche 4" shall mean the amount which may be drawn down by the
Borrower as an Advance pursuant to a Drawdown Request and having a term
of four years.
1.57 "Tranche 5" shall mean the amount which may be drawn down by the
Borrower as an Advance pursuant to a Drawdown Request and having a term
of five years.
1.58 "Tranche 6" shall mean the amount which may be drawn down by the
Borrower as an Advance pursuant to a Drawdown Request and having a term
of six years.
1.59 "Tranches" shall mean the sum of the Tranche 1, Tranche 2, Tranche 3,
Tranche 4, Tranche 5 and Tranche 6 and "Tranche" shall mean each one
of them.
1.60 "VAT" shall mean value added tax. (Umsatzsteuer).
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ART. 2
LOAN FACILITY
2.1 COMMITMENT
Subject to the terms and conditions of this Agreement (including the
preamble), the Lenders shall provide to the Borrower a loan facility
(hereinafter referred to as the " Loan Facility") for an aggregate
principal amount of DM 28,500,000 (in words: Deutsche Marks
twentyeightmillion fivehundredthousand) and the Lenders agree, in the
event of a Drawdown Request pursuant to Art. 5.2, to contribute during
the term of this Agreement as set out in Art. 6 to the Advances to be
provided to the Borrower hereunder an amount corresponding to its
Lender's Share, however, up to an aggregate maximum principal amount
not exceeding its Lender's Commitment.
2.2 OBLIGATIONS SEVERAL
The obligations of each Lender under this Agreement are several.
Failure of a Lender to carry out its obligations pursuant to this
Agreement in a proper manner does not relieve any other party of its
obligations under this Agreement. Save as provided for in Art. 21
below, the same shall apply in the event that a Lender terminates its
participation in this Agreement in accordance with this Agreement or
terminates its Lender's Commitment in accordance with this Agreement,
or where performance of the obligations undertaken by the Lender
pursuant to this Agreement would be invalid or illegal. No Lender is
responsible for the obligations of any other party under this
Agreement. Each Lender shall only be responsible for its Lender's
Share. Joint liability, or joint and several liability of the Lenders
is hereby excluded.
2.3 RIGHTS SEVERAL
The obligations of the Borrower to the Facility Agent, the Arranger and
the individual Lenders hereunder are created vis-a-vis each of them as
separate and independent obligations. Each Lender, Facility Agent or
Arranger may separately enforce its rights hereunder. The formation of
jointly owned assets is hereby excluded.
ART. 3
PURPOSE
The Borrower will use the Loan Facility for financing in part the purchase of
Papierfabrik Lahnstein GmbH, Lahnstein. Neither the Arranger, the Facility Agent
nor the Lenders shall be obliged to concern themselves with such application.
ART. 4
CONDITIONS PRECEDENT
4.1 The obligations of the Facility Agent and each Lender to the Borrower
under this Agreement are subject to the conditions precedent that the
Facility Agent has notified the Borrower and the Lenders that it has
received all of the following in form and substance satisfactory to it:
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(a) copy, certified to be a true copy of the articles of
association and such other corporate documents relating to the
Borrower and to FiberMark Beteiligungs GmbH as the Facility
Agent may reasonably and timely demand;
(b) extract, certified to be a true extract of the Commercial
Register relating to the Borrower and to FiberMark
Beteiligungs GmbH, of latest date;
(c) legal opinion of the Borrowers' legal counsel that this
Agreement creates legally binding and enforceable obligations
on the part of the Borrower, in form and substance acceptable
to the Arranger;
(d) copy of the Original Financial Statements and the auditor's
report regarding the Original Financial Statements and the
preliminary annual report per July 31, 1999 for Papierfabrik
Lahnstein GmbH;
(e) specimen signatures of such agents of the Borrower as shall be
authorised to sign this Agreement, the Drawdown Request and
any notices required to be given by the Borrower pursuant to
the provisions of this Agreement; and
(f) a pledge agreement over shares of Papierfabrik Lahnstein GmbH
to be entered by the Borrower with the Facility Agent securing
its obligations under this Agreement substantially in the form
of Annex 4 (hereinafter referred to as the "Pledge
Agreement");
(g) an amendment agreement to the Share Pledge Agreement
substantially in the form of Annex 5 (hereinafter referred to
as the "Pledge Amendment Agreement").
(h) evidence that the Parent has provided an amount of DM
9,500,000 as equity (including subordinated shareholder loans)
to the Borrower on an account with Bayerische Hypo- und
Vereinsbank AG and evidence that a loan in an amount which is
the balance of the purchase price being payable by the
Borrower pursuant to Sect. 2.2 of the Acquisition Agreement
and DM 38,000,000 has been provided by FiberMark Xxxxxxx GmbH
& Co.;
(i) and in the event that the equity in accordance with Art. 4.1
(g) of this Agreement has been provided by the Parent through
shareholder loans, a subordination and loan retention
agreement addressed to the Lenders in a form acceptable to the
Facility Agent;
(j) an amendment agreement to the Loan Agreement I substantially
in the form of Annex 7 (hereinafter referred to as the "Loan
Amendment Agreement").
The Facility Agent shall be entitled not to accept any documents
presented under this paragraph if the information contained therein
does materially differ from any information previously obtained from
the Borrower.
4.2 The obligations of the Facility Agent and each Lender to allow the
Borrower to make the Advance during the Availability Period are subject
to the further conditions precedent that:
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(a) the representations and warranties set out in Art. 18 are
correct and will be correct immediately after the Advance is
made; and
(b) no Event of Default set out in Art. 21 (or any event which
with the giving of notice or lapse of time might constitute an
Event of Default) has occurred and is continuing.
ART. 5
AVAILABILITY AND DRAWDOWN
5.1 AVAILABILITY PERIOD
Subject to the terms and conditions of this Agreement, the Facility may
be drawn down by the Borrower in up to six (6) drawings, provided that
(i) all drawings may only be made on one single Drawdown Date, and (ii)
that the total amount of all Advances is not exceeding the amount of
the Facility at any time during the Availability Period. Any amount of
the Facility not drawn down on the last day of the Availability Period
shall automatically be cancelled. Upon such cancellation, each Lender's
Commitment shall be reduced proportionally to each Lender's Share.
5.2 DRAWDOWN REQUEST
The request for the Drawdown of an Advance may not be delivered by the
Borrower until the Facility Agent has confirmed to the Borrower that it
has received all of the documents listed in Art. 4.1 (Conditions
Precedent) and that each is in form and substance satisfactory to the
Facility Agent. In any case, a request for the Drawdown will not be
regarded as having been duly completed, unless the following conditions
have been satisfied:
The Facility Agent has received, by no later than 1.00 p.m. Munich time
on the third (3rd) Business Day prior to the Drawdown Date the Drawdown
Request substantially in the form of Annex 1 (it being understood that
a separate Drawdown Request has to be presented for each Tranche) and
having the following minimum contents:
the proposed Drawdown Date, which must be a Business Day;
the amount of the Advance; and
the account of the Borrower or such other account as the
Borrower may determine to which the Advance is to be
transferred by the Facility Agent.
The Borrower's Drawdown Request cannot be withdrawn; it binds and
obliges the Borrower to accept the requested Advance.
5.3 LENDER'S PARTICIPATIONS
If the above conditions have been satisfied, the Facility Agent shall
by notice in writing pursuant to the provisions of Annex 2, notify by
no later than two (2) Business Days prior to the Drawdown Date each of
the Lenders of the amount of this Advance, the Drawdown Date, such
Lender's Share in the amount of the
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Advance and, in the event that payments shall not be effected to the
Account, any further information on the account to which the proceeds
of the Advance shall be paid.
5.4 PAYMENT OF PROCEEDS
Upon receipt of the written notice referred to in Art. 5.3 each Lender
shall, by no later than 10:00 a.m. Munich time on the Drawdown Date,
credit the Account of the Facility Agent with its participation in the
Advance corresponding to its Lender's Share and the Facility Agent
shall by no later than 12:00 a.m. Munich time on the Drawdown Date,
transfer the amount of the Advance to such account specified in the
Borrower's Drawdown Request.
ART. 6
TERM
The term of thesix (6) Tranches of the Facility shall lapse according to the
following schedule;
--------------------------------------------------------------------------------
Column A Column B
TRANCHE TERM ENDING ON
--------------------------------------------------------------------------------
Tranche 1 the date 12 months after the Drawdown
Date
--------------------------------------------------------------------------------
Tranche 2 the date 24 months after the Drawdown
Date
--------------------------------------------------------------------------------
Tranche 3 the date 36 months after the Drawdown
Date
--------------------------------------------------------------------------------
Tranche 4 the date 48 months after the Drawdown
Date
--------------------------------------------------------------------------------
Tranche 5 the date 60 months after the Drawdown
Date
--------------------------------------------------------------------------------
Tranche 6 the Final Maturity Date.
--------------------------------------------------------------------------------
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ART. 7
REPAYMENT
The Borrower shall repay each Tranche under the Facility in full on the relevant
Repayment Date for such Tranche as set out in the following schedule:
--------------------------------------------------------------------------------
Column A Column B
REPAYMENT DATE REPAYMENT AMOUNT
--------------------------------------------------------------------------------
TRANCHE 1 REPAYMENT DATE DM 6,000,000
being the date 12 months after the Drawdown Date
--------------------------------------------------------------------------------
TRANCHE 2 REPAYMENT DATE DM 6,000,000
being the date 24 months after the Drawdown Date
--------------------------------------------------------------------------------
TRANCHE 3 REPAYMENT DATE DM 4,125,000
being the date 36 months after the Drawdown Date
--------------------------------------------------------------------------------
TRANCHE 4 REPAYMENT DATE DM 4,125,000
being the date 48 months after the Drawdown Date
--------------------------------------------------------------------------------
TRANCHE 5 REPAYMENT DATE DM 4,125,000
being the date 60 months after the Drawdown Date
--------------------------------------------------------------------------------
TRANCHE 6 REPAYMENT DATE DM 4,125,000
being the Final Maturity Date
--------------------------------------------------------------------------------
If the Facility has not been drawn in full by the Borrower, the Repayment will
be reduced pro rata.
The Repayment Amount for each Tranche shall be repaid together with all other
amounts (including interest) as may be due pursuant to the provisions of this
Agreement on the Final Maturity Date and which have not been paid by the
Borrower prior to the Final Maturity Date. Each Repayment Amount made under this
Agreement shall reduce each Lender's participation accordingly and may not be
reborrowed thereafter.
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ART. 8
PREPAYMENT AND CANCELLATION
8.1 VOLUNTARY PREPAYMENT
The Borrower may, by giving not less than thirty (30) days prior notice
to the Facility Agent, prepay all Advances outstanding in whole or in
part (being DM 1,000,000 or any larger sum which is an integral
multiple of DM 1,000,000) on the last day of an Interest Period in
inverse order of maturity; it being understood that if the Borrower
prepays an Advance in full or in part prior to the Repayment Date for
such Tranche as set out in Art. 7 the Borrower shall indemnify the
Lenders for any refinancing damage related to such prepayment, if any.
In addition to that, if:
(a) the Borrower is required to pay to a Lender any amount under
Art. 16 (Increased Costs); or
(b) the Borrower is required to pay to a Lender any additional
amounts under Art. 17 (Taxes);
then, without prejudice to the obligations of the Borrower under
those provisions and the provisions under Art. 12.4, the Borrower
may, whilst the circumstances continue, serve a notice of prepayment
on that Lender through the Facility Agent. On the date falling
thirty (30) Business Days after the date of service of the notice
the Borrower shall prepay that Lender's Share of the Advance
provided that such prepayment is made together with any amount
payable by the Borrower under Art. 12.4 (iii).
8.2 MANDATORY PREPAYMENT
If, at any time while the Advance is still outstanding under the
Agreement, the Borrower after the date of this Agreement ceases to be a
majority-owned direct or indirect subsidiary of the Parent, the
Borrower shall prepay the outstanding Advance on the last day of the
then current Interest Period.
8.3 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment under this Agreement is irrevocable.
The Facility Agent shall notify the Lenders promptly of
receipt of any such notice.
(b) All prepayments under this Agreement shall be made together
with accrued interest on the amount prepaid or repaid and all
other amounts due on such date (if any) owing by the Borrower
to such Lender.
(c) No prepayment or cancellation is permitted except in
accordance with the express terms of this Agreement.
(d) No amount prepaid under this Agreement may subsequently be
reborrowed.
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ART. 9
INTEREST
9.1 INTEREST RATE
Each Advance outstanding shall bear interest payable in arrears at the
Interest Rate which shall be expressed as an annual interest rate.
9.2 DUE DATES
Save as otherwise provided herein, accrued interest for each drawing
shall be paid on the September 17, and March 17, of each calendar
year until the Final Repayment Date, the first due date to be
March 17, 2000.
9.3 BANK BASIS
Interest shall accrue from day to day and be calculated on the basis of
the actual number of days elapsed in the relevant Interest Period
divided by 360.
ART. 10
INTEREST PERIODS
10.1 INTEREST PERIODS
The period for which each Advance is outstanding shall be divided into
successive periods, each hereinafter referred to as an "Interest
Period". The Interest Periods in relation to each Advance shall be
of six months, and shall commence on the Drawdown Date and subject to
Art. 10.2 shall end on the Interest Payment Date of each Interest
Period. Each subsequent Interest Period shall commence on the last day
(24:00) of the previous Interest Period.
Notwithstanding the foregoing, if an Interest Period would end after a
Repayment Date, such Interest Period shall end on the Final Maturity
Date.
10.2 NON-BUSINESS DAY
In the event that an Interest Payment Date would fall on a day not
being a Business Day, then the following Business Day shall be the
Interest Payment Date and the Interest Period shall be extended
accordingly, unless the Interest Payment Date would therefore fall in
the next calendar month, in which case the Interest Payment Date shall
be the immediately preceding Business Day and the Interest Period shall
be shortened accordingly.
ART. 11
INTENTIONALLY OMITTED
17
ART. 12
DEFAULT INTEREST AND INDEMNIFICATION
12.1 DEFAULT
In the event that any outstanding payments pursuant to this Agreement
are not made or are only partly made by their due dates, the Borrower
shall in respect of such outstanding payments and without further
notice, be in default with respect to such payments.
12.2 DEFAULT INTEREST RATE
If any sum due and payable by the Borrower hereunder is not paid on the
due date therefor, the unpaid sum shall bear interest payable in
arrears at the rate which shall be expressed as an annual rate and
shall be the sum of the Interest Rate applicable for that Tranche under
which the amounts have not been paid on their due dates and two per
cent (2.0 %).
12.3 FIRST DEMAND PAYMENT
Any interest which shall have accrued under Art. 12.2 in respect of an
unpaid sum shall be due and payable and shall be paid by the Borrower
at the end of the period by reference to which it is calculated or on
such later dates as the Facility Agent may specify by written notice to
the Borrower.
All payments on damages shall be made by the Borrower without undue
delay upon demand of the Facility Agent.
12.4 INDEMNITY
The Borrower shall compensate the Lenders for any loss, damage, costs
and outlays (including losses of margin or losses resulting from
refinancing incurred by the Lenders in the provision or maintenance of
the Advance for the relevant Interest Periods) which have been incurred
by the Lenders because:
(i) the Borrower has failed to pay a sum due pursuant to this
Agreement on the due date; or
(ii) an Event of Default described in the provisions of Art. 21 has
occurred.
If the Borrower has made payments on a day which is not an Interest
Payment Date; or the drawdown of an Advance requested by the Borrower
cannot be made because the Borrower has failed to satisfy a condition
precedent or the Borrower refuses to accept the Advance; the Borrower
shall pay to each Lender through the Facility Agent the amount by which
(a) the interest which would have been payable on the amount by the
Borrower hereunder exceeds (b) the amount of interest which would have
been payable in respect of a deposit in Deutsche Marks and equal to the
amount placed by it with a prime bank in London for a period starting
on the third Business Day following the date of the proposed borrowing
or of such receipt, as the case may be, and ending on the last day of
the Interest Period thereof.
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ART. 13
ACCOUNTS
13.1 LENDER'S ACCOUNTS
Each of the Lenders shall in its books of account, in accordance with
common banking practice, maintain an account for the Borrower from
which the principal sum, the amount of interest and other payments owed
by the Borrower to such Lender pursuant to this Agreement can be
determined.
13.2 CONTROL ACCOUNT
The Facility Agent shall in its books of account maintain a control
account from which can be determined;
(i) the sum total of the outstanding Advance and each Lender's
Share therein; and
(ii) the sum total of principal, interest and other payments owed
to the Lenders pursuant to this Agreement, as well as each
Lender's Share therein; and
(iii) the sum total of payments received from the Borrower and the
Share of each Lender therein.
Whenever an entry is made in the control account, the Facility Agent
shall prepare an account statement for the control account and shall
provide such statement to each Lender and the Borrower without undue
delay.
13.3 ACCOUNTS AS EVIDENCE
For the purposes of judicial, arbitration or other proceedings in
relation to this Agreement the above account statements shall, in the
absence of manifest error, be conclusive and binding between the
parties, unless the Borrower provides proof of the opposite.
ART. 14
PAYMENTS
14.1 FUNDS, PLACE AND CURRENCY
All payments owed by the Borrower pursuant to this Agreement plus VAT,
if applicable, shall be made in Deutsche Marks in immediately available
funds and by no later than 2:00 p.m. (Munich time) on each due date to
the Account.
14.2 NO SET-OFF, COUNTERCLAIM OR RETENTION
All payments to be made shall be made free and clear of Taxes (unless
the Borrower is compelled by law to make payment subject to Taxes),
without any deductions and to the exclusion of any set-off,
counterclaim, right of bailment,
19
retention or lien, restriction or condition; unless such claims to be
set-off by the Borrower are undisputed or confirmed by a court
decision.
14.3 DISCHARGING EFFECT
The Borrower shall be released from its obligation to make any
particular payment only once the paid sum has been unconditionally
credited to the Account and only in so far as the amount paid is
sufficient to satisfy the Borrower's payment obligations on any date at
which payment is due pursuant to this Agreement.
14.4 APPROPRIATION
In the event that the Borrower makes a payment which is insufficient to
satisfy all of its payment obligations on a date on which such payment
is due pursuant to this Agreement, the Facility Agent has the right in
its reasonable discretion to apply the received sum against such
outstanding claims of the Lenders as the Facility Agent may decide. Any
contrary instruction given by the Borrower shall have no effect.
14.5 DISTRIBUTION
The Facility Agent shall, without prejudice to other provisions of this
Agreement, distribute without delay the appropriate share of principal,
interest and other payments owed pursuant to this Agreement to the
relevant individual Lender in the same proportions as their respective
participation in the Advance bear to the whole amount of the Advance,
as they are received by the Facility Agent.
ART. 15
ILLEGALITY
lf any change in or introduction of any law, regulation or treaty, or any change
in the interpretation or application thereof (hereinafter referred to as "Legal
Changes"), shall make it unlawful for any Lender to make available or fund or
maintain its Lender's Commitment or its participation in any outstanding Advance
or to give effect to its obligations as contemplated hereby, the following
provisions shall apply:
15.1 Such Lender may terminate the totality of its Lender's Commitment and
its participation in the outstanding Advance by notice to the Borrower,
such notice to be presented to the Facility Agent who will transmit it
to the Borrower without undue delay, effective as from the date of
which performance becomes unlawful or contrary to any regulation or at
the end of the applicable Interest Periods, whichever is the earlier,
such notice stating exactly which contractual obligations became
illegal, the date on which such illegality will arise and which Legal
Changes have given rise to the illegality. The Facility Agent shall
without undue delay upon receipt of such notice of termination inform
all other Lenders.
15.2 The Borrower shall repay or prepay (as the case may be) such Lender's
participation in the outstanding Advance plus accrued interest and any
other sums outstanding pursuant to this Agreement, at the end of the
applicable Interest Periods or, in the event termination is effective
pursuant to Art. 15.1 before the end of an Interest Period, at such
earlier date (unless the Borrower is notified of termination after such
earlier date in which case payment shall be made within three (3)
Business Days of the Borrower's receipt of such notice).
20
Upon effective termination all obligations of the terminating Lender
pursuant to this Agreement shall end and the sum total of the Loan
Facility shall be reduced by the amount of the terminated Lender's
Commitment.
15.3 If any Lender (through the Facility Agent) gives notice to the Borrower
pursuant to Article 15.1 requiring prepayment, then, but without
prejudice to the obligations of the Borrower to effect such prepayment
pursuant to Article 15.2, the Borrower, the Facility Agent and such
Lender shall forthwith commence negotiations in good faith with a view
to agreeing on terms (which shall not in any way be prejudicial to such
Lender ) for making such Lender's participation in the Advances
available from another jurisdiction or for restructuring its
participation in the Advances on a basis which is not so unlawful,
provided that neither the Facility Agent nor such Lender shall be under
any obligation to continue such negotiations if terms have not been
agreed within 30 days after the date of such Lender's notice.
ART. 16
INCREASED COSTS
If, as a result of Legal Changes (including, for the purposes of this Art. 16,
rules, orders or directives in relation to required reserves, special deposits,
liquidity or capital adequacy requirements, any requirement relating to the
manner in which the Lender is required to allocate financial resources to
provide for the making of or in relation to the Advance or any other form of
banking or monetary controls (whether or not having the force of law), a Lender
at any time in the future in relation to its Lender's Commitment or its
participation in the outstanding Advance made to the Borrower,
(a) suffers an increase of the cost of making or funding the Advance or of
maintaining its Lender's Commitment hereunder; or
(b) suffers a reduction of any amount payable to it or to the Facility
Agent or of the effective return before taxes on income; or
(c) makes any payment, either directly or through the Facility Agent, or
forgoes any interest or other return on or calculated by reference to
any amount received or receivable by it from the Borrower hereunder;
(collectively referred to as "Increased Costs") then, without prejudice to the
provisions of Art. 17, the following provisions shall apply:
16.1 Such Lender shall have the right, upon giving notice to the Borrower,
such notice to be presented to the Facility Agent who will transmit it
to the Borrower without undue delay, to request payment from the
Borrower of a sum compensating it for its Increased Costs. Such notice
shall state the reasonably determined amount of such Increased Costs,
the date upon which such Increased Costs were or began to be incurred
and the Legal Changes which led to the Increased Costs.
16.2 The Borrower shall no more than ten days after receiving the notice
referred to in Art. 16.1 pay all of the Lender's substantiated
Increased Costs incurred prior to receipt of the said notice.
21
16.3 The Borrower is entitled to defend any demand for Increased Costs by
showing that these Increased Costs as determined by the Facility Agent
were falsely calculated and/or do not reflect the Legal Changes.
ART. 17
TAX GROSS-UP
In the event that the Borrower or the Facility Agent is obliged by law
to make any deduction or withholding in respect of Taxes from any
payment under this Agreement for the account of the Arranger, the
Facility Agent or any Lender, the Borrower shall:
(i) pay any such Taxes by their due date and, no less than thirty
(30) days after such payment provide to the Facility Agent the
original or a certified copy of the receipt of the relevant
authority; and
(ii) indemnify and keep harmless the Lenders in relation to all
such Taxes; and
(iii) make such additional payments to the Lenders as may be
necessary in order that the net amount remaining after the
said deduction or retention, corresponds with the sum due to
be paid.
"Taxes" for the purpose of this paragraph shall, for the avoidance of
doubt, include all taxes levied by a German authority whether on the
basis of income or otherwise.
ART. 18
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Facility Agent, the Arranger
and each of the Lenders that on the date of this Agreement:
(A) STATUS
The Borrower is a limited liability company under the laws of the
Federal Republic of Germany, duly organised and validly existing under
the laws of the Federal Republic of Germany, has the capacity to xxx
and be sued in its own name and has the power to own its property and
assets and carry on its business as it is now being conducted.
(B) POWERS AND AUTHORITY
The Borrower has the authority to enter into and execute this
Agreement, to accept the Loan Facility and to perform its obligations
pursuant to this Agreement, and in this regard all necessary decisions
and resolutions of the Borrower and its shareholders have been taken.
(C) LEGAL VALIDITY
The obligations of the Borrower created in this Agreement are legally
valid and binding obligations of the Borrower enforceable in accordance
with the terms and conditions of this Agreement; and this Agreement is
in proper form for enforcement in the courts of the Federal Republic of
Germany. The choice of the
22
law of the Federal Republic of Germany as the law governing this
Agreement constitutes a valid choice of law under the law of the
Federal Republic of Germany and the courts of the Federal Republic of
Germany will observe and give effect to such choice of law.
(D) NON-CONFLICT
The entry into and the execution and performance of this Agreement does
not conflict, or result in a breach of any terms of any agreement to
which the Borrower is a party or is subject or by which it or any of
its property is bound, and does not violate any law, directive, order,
decree, arbitral- award, judgement, or any document to which the
Borrower is a party.
(E) NO DEFAULT
No event has occurred which constitutes an event of default under or in
respect of any agreement or document to which the Borrower is a party
or by which the Borrower may be bound (including inter alia, this
Agreement) and no event has occurred which, with the giving of notice
or lapse of time might constitute an event of default under or in
respect of any such agreement or document, and all of which events
might have a material adverse effect on the ability of the Borrower to
perform or discharge its obligations.
(F) CONSENTS
Under the laws of the Federal Republic of Germany, no authorisations,
approvals, consents, licences, exemptions, filings, registrations,
notarisations and other matters, official or otherwise, are required by
or advisable for the Borrower in connection with the entry into,
performance, validity and enforceability of this Agreement, other than
a shareholder`s resolution pursuant to the German ,"law for GmbH"
(Gesetz betreffend die Gesellschaften mit beschrankter Haftung).
(G) FINANCIAL STATEMENTS
The Original Financial Statements are true and convey a fair picture of
the financial position of the Borrower or, as the case may be, the
members of the Group as at that date. The Original Financial Statements
were prepared in accordance with all applicable accounting and auditing
principles, and these principles were applied in the same form and
manner as in previous years, unless otherwise stated in the Original
Financial Statements; without limitation to the foregoing it being
understood that not all Original Financial Statements were prepared by
the Borrower or on its behalf.
(H) LITIGATION
No arbitration, litigation or other proceedings against the Borrower or
any other member of the Group, the result of which, taken as a whole,
could be substantially detrimental to the financial condition or the
business activities of the Borrower, are to the best of the Borrower's
knowledge, currently in progress or threatened against the Borrower and
no liquidation or similar proceedings are, to the best of the
Borrower's knowledge, currently in progress or threatened against the
Borrower.
23
(I) NO MATERIAL ADVERSE CHANGE
The financial condition of the Borrower, the Parent or the Group has
not deteriorated in comparison with the Original Financial Statements
in a manner which has or will have a material adverse effect on the
ability of the Borrower or any member of the Group to perform its
obligations pursuant to this Agreement.
(J) NO ENCUMBRANCES
Unless permitted by this Agreement, and with the exception of Permitted
Encumbrances, no Encumbrance of any asset or future asset, or the
present or future revenues of the Borrower or any member of the Group
exists and the execution and performance of this Agreement will not
result in the creation of such Encumbrances.
(K) PARI PASSU RANKING
The obligations of the Borrower hereunder rank at least pari passu with
all its other present and future obligations; save as with obligations
having priority by law.
(L) TAX LIABILITIES
The Borrower has complied on a best effort basis with all Taxation laws
in all jurisdictions in which it is subject to Taxation and has paid
all Taxes due and payable by it; no material claims are being asserted
against it with respect to Taxes, all amounts payable by the Borrower
hereunder may be made free and clear of and without deduction for or on
account of any Taxes.
(M) NO WINDING-UP
The Borrower or any member of the Group have not taken any corporate
action nor have any other steps been taken or legal proceedings been
started or threatened against them for their winding-up, dissolution,
administration or re-organisation or for the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator or similar
officer of them or of any or all of their assets or revenues.
(N) GROUP STRUCTURE
The Group Structure is true, complete and accurate.
(O) REPETITION
Each of the representations and warranties of this Art. 18 other than
the representations contained in Art. 18 (a), (h), (i), and (n) will be
correct and complied with so long as any sum remains to be lent or
remains payable by the Borrower under this Agreement as if repeated by
the Borrower on the first day of each Interest Period then by reference
to the then existing circumstances.
24
ART. 19
COVENANTS
The Borrower hereby covenants in relation to each Lender, and insofar as
applicable, covenants to bring about that:
19.1 FINANCIAL INFORMATION
(a) So long as any amount available under this Agreement is
outstanding or the Loan Facility or any part thereof remains
outstanding or any other sum is payable pursuant to this
Agreement, the Borrower will provide to the Facility Agent in
sufficient copies for each of the Lenders the following
statements, prepared according to generally accepted
accounting principles:
(i) as soon as available, but in any event no later than
one hundred and five (105) days after the end of each
financial year, the audited fiscal year-end and
financial statements, including the balance sheet, the
profit and loss account and the certified auditor's
report of the Parent, the Group and any individual
member of the Group, and in the event that the above
mentioned documents are not prepared within a period
of one hundred and five (105) days after the end of
each financial year, no later than one hundred and
five (105) days after the end of each financial year,
the unaudited fiscal year-end and financial
statements, including the balance sheet and the profit
and loss account of the Parent, the Group and any
individual member of the Group and no later than one
hundred eighty (180) days after the end of each
financial year, the audited fiscal year-end and
financial statements, including the balance sheet and
the profit and loss account and the certified
auditor's report of the Parent, the Group and any
individual member of the Group;
(ii) as soon as available, but in any event no later than
forty five (45) days after the end of each calendar
quarter, quarterly management financial statements of
the Group and any individual member of the Group
including profit and loss accounts as well as cash
flow calculations together with comparative
information in relation to the management financial
statements previously delivered by the Borrower in a
form agreed with the Facility Agent
(Quartalsberichte); and
(iii) as soon as available, but in any event on the date of
the signing of this Agreement, a five years budget on
a roll-over basis including capital expenditures and
cash flow projections, profit and loss accounts and
balance sheets of the Group and any individual member
of the Group in a form agreed with the Facility Agent,
and for each following five year period during the
term of this Agreement the above mentioned statements
shall be prepared until January 15 of the respective
calendar year.
The aforementioned financial statements, balance sheets and
profit and loss accounts will be prepared in accordance with
the same principles as the Original Financial Statements or,
in the case of a divergence
25
therefrom, will be accompanied by a statement explaining each
changed accounting principle and its effects. All financial
information shall be presented in their original language,
being German or English.
(b) Forthwith upon receiving a request to that effect, the
Borrower will provide to the Facility Agent such additional
financial information or other information relevant to this
Agreement as the Facility Agent or a Lender through the
Facility Agent may from time to time reasonably request and
the Borrower may provide with internal staff and which
presentation will not disturb its ordinary course of business.
19.2 OTHER INFORMATION
So long as any amount available under this Agreement is outstanding or
the Loan Facility or any part thereof remains outstanding or any other
sum is payable pursuant to this Agreement, the Borrower and/or any
other member of the Group will provide to the Facility Agent in
sufficient copies for each of the Lenders:
(a) promptly, all notices or other documents in relation to the
financial condition or business of the Borrower and/or any
other member of the Group published;
(b) details of any material litigation, arbitration or
administrative proceedings which affect the Borrower and/or
any member of the Group as soon as the same are instituted or,
to the knowledge of the Borrower, threatened.
19.3 FINANCIAL COVENANTS
So long as any amount available under this Agreement is outstanding or
the Loan Facility or any part thereof remains outstanding or any other
sum is payable pursuant to this Agreement the consolidated financial
conditions of the Group, as evidenced by the financial statements
prepared on the same basis as was used for the preparation of the
Original Financial Statements, shall be such that
(i) on June 30 as well as on December 30 in each calendar year,
the Interest Cover Ratio for the preceding twelve months is
not less than 2.5, starting on December 30, 1999;
(ii) on June 30 and on December 30 in each calendar year, the
Equity Ratio is not less than 20 %, starting on December 30,
1999; and
(iii) on December 31, 1999 the Leverage Ratio is not more than 4,5,
and in each calendar year starting on December 31, 2000 not
more than 4.
In the event that the Borrower will introduce new accounting standards
the Facility Agent will consider with the Lenders whether the Lenders
are prepared to agree to new definitions for the financial covenants
and the ratios as set out in Art. 19.3 above. Furthermore, the Majority
Lenders will, upon request of the Borrower, decide whether they are
prepared to waive any other covenant as set out in Art. 19.
26
19.4 FURTHER UNDERTAKINGS
(A) PARI PASSU RANKING
The Borrower undertakes for so long as any amount available under this
Agreement is outstanding or the Loan Facility or any part thereof
remains outstanding or any other sum is payable pursuant to this
Agreement that its obligations pursuant to this Agreement will rank at
least pari passu with all other present and future obligations; save
for any other obligations having priority by law.
(B) NEGATIVE PLEDGE
The Borrower or any member of the Group will not create any
Encumbrance, except for Permitted Encumbrances, on or over all or any
of its present or future assets or revenues, for the purpose of
granting a security in respect of its Indebtedness, and it will
furthermore procure that any member of the Group will not create any
encumbrances which, if created by the Borrower, would fall under the
definition of Encumbrance as stated in Art. 1.14
(C) NOTIFICATION OF DEFAULT
The Facility Agent shall without undue delay be notified of the
occurrence of any Event of Default as described in Art. 21.
(D) MAINTENANCE OF LEGAL VALIDITY
The Borrower shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws and
regulations of the Federal Republic of Germany to enable the Borrower
lawfully to enter into and perform its obligations under this Agreement
and to ensure the legality, validity, enforceability or admissibility
in evidence in the Federal Republic of Germany of this Agreement.
(E) NO MERGER AND SALE OF GROUP COMPANIES
If the Borrower or any member of the Group intends to merge or
consolidate with any other company or Person, the result of which would
(in the opinion of the Majority Lenders) materially adversely affect
the Borrower, it will inform the Facility Agent in writing and in good
time of such intention explaining if and how such merger or
consolidation might affect the Lenders' risk position. The Borrower
will furthermore inform the Facility Agent in writing and in good time
if it intends to sell or otherwise dispose of any of its material
subsidiaries which would materially adversely affect the Borrower's
ability to perform its obligations hereunder. A formentioned
information shall explain if and how these measures might affect the
Lenders' risk position. It is expressly agreed that the Borrower shall
be authorised to convert Papierfabrik Lahnstein GmbH into a partnership
("Offene Handelsgesellschaft") or a limited partnership
("Kommanditgesellschaft"), as the case may be.
(F) LIMITATION OF EXPENDITURE ("INVESTITIONSAUSGABEN")
If the Borrower or any member of the Group intends to make any payments
on account of capital expenditure which are not part of the capital
expenditure
27
projection or other statements prepared in accordance with Art. 19.1
(a) (iii) of this Agreement and which exceed in total the amount of
DM 1,000,000 the Borrower will inform the Facility Agent prior to
such expenditure explaining if and how the intended expenditure
might affect the Lenders' risk position.
(G) INFORMATION ON PERMITTED ENCUMBRANCES
The Borrower or any member of the Group shall ensure that the Facility
Agent shall be informed on any such Permitted Encumbrances as soon as
they may be granted in the future in favour of any third party
creditor.
(H) PAYMENTS WITHIN THE GROUP
The Borrower shall endeavour, on a best effort basis, that any excess
cash flow by any of its subsidiaries being part of the Group is not
held within this company, but is transferred to the Borrower if and
when appropriate with respect to the obligations of the Borrower under
this Agreement.
(I) SUBSCRIPTION AND USE OF EQUITY
The Borrower undertakes to ensure that in the event that the purchase
price payable by it pursuant to Sect. 2.2 of the Acquisition Agreement
shall exceed the the amount of DM 41,593,000 (in words: Deutsche Xxxx
fortyone million six hundred twentytwo thousand) such exceeding amount
of the purchase price payable by the Borrower will be funded from
equity (including subordinated shareholder loans) Furthermore, the
Borrower undertakes to ensure that if pursuant to Sect. 3.5 of the
Purchase Agreement, the final purchase price will be less than the
amount as set out in sentence 1 of this sub-section, the part of the
purchase price repaid by the seller of Papierfabrik Lahnstein GmbHto
the Borrower, if any, shall be contributed as equity of the Borrower's
equity capital or shareholder loans (being accompanied by a
subordination and loan retention agreement addressed to the Lenders in
a form acceptable to the Facility Agent).
(J) LIMITATION OF INDEBTEDNESS
Ifthe Borrower or any other member of the Group intends to create any
other Indebtedness with any bank or other financial institution in the
amount exceeding DM 10,000,000 the Borrower will inform the Facility
Agent in writing and in good time of such intention explaining if and
how the creation of such other Indebtedness might affect the Lenders'
risk position.
19.5 DURATION
The undertakings in this Art. 19 shall remain in force from and after
the date hereof and so long as any amount is or may be outstanding
hereunder.
ART. 20
ADDITIONAL COLLATERAL
If any of the measures referred to in Art. 19.4 (e), (f) and /or (j) of this
Agreement when implemented would affect the risk assessment of the Lenders in
respect of the ability of the Borrower to perform ist obligations hereunder, the
Lenders shall be entitled to
28
demand from the Borrower additional collateral within 20 (twenty) Business Days
following such demand.
ART. 21
EVENTS OF DEFAULT
21.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default (whether or not
caused by any reason whatsoever within the control of the Borrower or
of any other Person):
(a) the Borrower fails to pay any amount payable by it hereunder
on the due date thereof and this failure is not remedied
within three (3) Business Days after written notification by
the Facility Agent; or
(b) any representation, warranty, covenant as set out in Art. 19.4
or statement made in, or in connection with, this Agreement or
in any accounts, certificate, statement or opinion delivered
by or on behalf of the Borrower hereunder or in connection
herewith is incorrect or untrue in any material respect when
made or is not complied with and such default is incapable of
remedy, or if capable of remedy, is not remedied within twenty
(20) Business Days after receipt of written notice from the
Facility Agent requesting the same and has a material adverse
effect on the Borrower's payment obligations under this
Agreement; or
(c) the Borrower fails to comply with any covenant (as set out in
Art. 19.1 to Art. 19.3) or any other provision of this
Agreement and this failure, if capable of remedy, is not
remedied within thirty (30) Business Days (respectively ninety
(90) Business Days for the covenants as set out in Art. 19.3)
after receipt of written notice from the Facility Agent; or
(d) the Borrower fails to provide additional collateral as set out
in Art. 20 of this Agreement; or
(e) (i) any other Indebtedness of the Borrower or any
other member of the Group of an aggregate amount of
not more than DM 1,000,000 (or its equivalent in any
other currency) becomes prematurely due and payable as
a result of a default thereunder, and is not paid
within a period of five (5) Business Days after its
respective due date; or
(ii) any event of default (or event which with giving of
notice or lapse of time may constitute such an event
of default) occurs under any contract or document
relating to any such Indebtedness; or
(iii) any Encumbrance over any assets of the Borrower or any
other member of the Group becomes enforceable which
has a material adverse effect on the ability of the
Borrower to perform its payment obligations under this
Agreement; or
(iv) there occurs any material adverse change in the
financial condition of the Borrower or the Group which
leads to the
29
Borrower's incapability to perform its payment
obligations under this Agreement, provided however
that the termination right pursuant to this
Art. 21.1.e (iv) in connection with Art. 21.2. below
may be exercised only if so confirmed by the Majority
Lenders; or
(f) any order (provisional or final) is made by court resolution
passed for the general suspension of payments or dissolution,
termination of existence, liquidation, winding-up, bankruptcy,
insolvency, judicial management or administration of the
Borrower; or
(g) a moratorium in respect of all or any debts of the Borrower
exceeding the amount of DM 1,000,000, or a composition or an
arrangement with creditors of the Borrower or any similar
proceeding or arrangement by which the assets of the Borrower
are submitted to the control of its creditors is ordered or
declared; or
(h) a liquidator, trustee, administrator, receiver, arranger or
similar officer is appointed in respect of the Borrower or in
respect of all or a substantial part of its assets; or
(i) the Borrower becomes or is declared insolvent or is unable, or
admits its general inability to pay its debts as they fall due
or becomes insolvent within the terms of any applicable law;
or
(j) a distress, execution, attachment or other process affects any
asset of the Borrower which has a material adverse effect on
the ability of the Borrower to perform its obligations under
this Agreement; or
(k) the Borrower or any other member of the Group ceases or
threatens to cease, to carry on its present business or
disposes, or threatens to dispose, of a substantial part of
its business, property or assets or a substantial part of its
business, property or assets is seized, nationalised,
expropriated or compulsorily acquired, other than those
measures as described in Art. 19.4(e) last sentence; or
(l) any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable the Borrower to comply with any of its
material obligations hereunder, if any, is modified, revoked
or withheld or does not remain in full force and effect; or
(m) at any time it is unlawful for the Borrower to perform any
of its material obligations hereunder; or
(n) at any time as long as 50% (fifty per cent) of this Loan
Facilty and the facility under Loan Agreement I remain
outstanding any dividend payments (excluding dividend payments
which are used to increase the equity of the Borrower
["Xxxxxx-aus-hol-zuruck-Verfahren"] or interest payments on
shareholder loans are made by the Borrower; or
(o) at any time after more than 50% (fifty per cent) of the Loan
Facility and the facility under Loan Agreement I have been
repaid any dividend payments (excluding dividend payments
which are used to increase the equity of the Borrower
["Xxxxxx-aus-hol-zuruck-Verfahren"]) or interest payments on
shareholder loans are made by the Borrower which are
30
unreasonable in respect of the cash flow situation and the
earning results of the Borrower, and which would have a
material adverse effect on the Borrower's ability to perform
its obligations under this Agreement; or
(o) the Borrower ceases to be a majority-owned subsidiary of the
Parent.
(p) the share pledge agreement as attached in Annex 4, the Pledge
Amendment Agreement as attached in Annex 5 and the Loan
Amendment Agreement as attached in Annex 7 have not become
legally valid and effective on the Closing Date.
21.2 ACCELERATION
In the case of any such Event of Default, and at any time thereafter if
any such event shall then be continuing, but not later than thirty (30)
days after the Facility Agent becomes aware of the occurrence of such
an event, the Facility Agent may, and shall, if so directed by the
Majority Lenders, by written notice to the Borrower:
(a) declare that the obligations of the Lenders hereunder to allow
the Borrower to make an Advance and the Lenders' Commitments
shall be cancelled forthwith whereupon the same shall be so
cancelled forthwith; and/or
(b) declare all outstanding amounts under this Agreement
immediately due and payable whereupon the same shall become
immediately due and payable together with all interest accrued
thereon and all other amounts payable hereunder.
ART. 22
RIGHTS AND OBLIGATIONS OF FACILITY AGENT
22.1 APPOINTMENT
Bayerische Hypo- und Vereinsbank Aktiengesellschaft is hereby appointed
Facility Agent. Each Lender irrevocably authorises the Facility Agent
on such Lender's behalf to perform such duties and to exercise such
rights and powers under this Agreement as are specifically delegated to
the Facility Agent by the terms of this Agreement, together with such
rights and powers as are reasonably incidental thereto. The Facility
Agent, however, must not commence any legal action or proceedings on
behalf of any Lender without such Lender's prior written approval. The
Facility Agent shall have only those duties and powers which are
expressly specified in this Agreement. The Facility Agent's duties
hereunder are solely of a mechanical and administrative nature.
22.2 MAJORITY LENDERS' DIRECTIONS
In the exercise of any right or power and as to any matter not
expressly provided for by this Agreement, the Facility Agent may act or
refrain from acting in accordance with the instructions of the Majority
Lenders and shall be fully protected in so doing. In the absence of any
such instructions, the Facility Agent may act or refrain from acting as
it shall deem fit. Any such instructions shall be binding on all the
Lenders.
31
22.3 RELATIONSHIP
(a) The relationship between the Facility Agent and each Lender is
that of principal and Facility Agent only. Nothing herein
shall constitute the Facility Agent a trustee or fiduciary for
any Lender, the Borrower or any other Person.
(b) The Facility Agent shall not in any respect be Facility Agent
of the Borrower by virtue of this Agreement.
(c) The Facility Agent shall not be liable to the Borrower for any
breach by the Arranger or by any Lender of this Agreement or
be liable to any Lender or the Arranger for any breach by the
Borrower hereof.
22.4 DELEGATION
The Facility Agent may act hereunder through its officers, employees or
agents.
22.5 DOCUMENTATION
Neither the Facility Agent nor the Arranger nor any of their officers,
employees or agents shall be responsible to any Lender or to each other
for
(a) the valid execution, genuineness, validity, enforceability or
sufficiency of this Agreement or any other document in
connection herewith, or
(b) the collectability of amounts payable hereunder, or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with this Agreement or any other document
in connection herewith.
22.6 DUTIES
The Facility Agent shall not be required to ascertain or inquire as to
the performance or observance by the Borrower of the terms of this
Agreement or any other document in connection herewith. The Facility
Agent shall not be deemed to have knowledge of the occurrence of any
Event of Default (or event which with lapse of time, notice,
determination of materiality or other condition may constitute such an
Event of Default) other than in the case of a payment default, of which
the Facility Agent gained actual knowledge unless the Facility Agent
has received written notice from a party hereto describing such Event
of Default or event and stating that such notice is a "Notice of
Default" or unless the Facility Agent does not receive a payment from
the Borrower hereunder on its due date. If the Facility Agent receives
such a Notice of Default, the Facility Agent shall promptly give notice
thereof to the Lenders.
22.7 EXONERATION
Neither the Facility Agent nor any of its officers, employees or agents
shall be liable to any Lender for any action taken or omitted under or
in connection with this Agreement unless caused by its or their gross
negligence or wilful misconduct.
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22.8 RELIANCE
(a) The Facility Agent may rely on any communication or document
believed by it to be genuine and correct.
(b) The Facility Agent may engage, pay for and rely on legal or
other professional advisers selected by it and shall be
protected in so relying.
22.9 CREDIT APPROVAL
Each of the Lenders severally represents and warrants to the Facility
Agent and the Arranger that it has made its own independent
investigation and assessment of the financial condition and affairs of
the Borrower and its related entities in connection with its
participation in this Agreement and has not relied exclusively on any
information provided to such Lender by the Facility Agent or the
Arranger in connection herewith. Each Lender represents, warrants and
undertakes to the Facility Agent and the Arranger that it shall
continue to make its own independent appraisal of the creditworthiness
of the Borrower and its related entities while the Advance are
outstanding or its Lender's Commitment is in force.
22.10 INFORMATION
(a) The Facility Agent shall furnish each Lender with a copy of
any documents received by it under Art. 19.1 and Art. 19.2
(but the Facility Agent shall not be obliged to review or
check the accuracy or completeness thereof). If requested by a
Lender, the Facility Agent shall furnish to such Lender a copy
of all documents received by it under Art. 4. The Facility
Agent shall furnish each Lender with a copy of any information
received by it under Art. 19.4 (e), (f) and (j) of this
Agreement (but the Facility Agent shall not be obliged to
review or check the accuracy or completeness thereof).
(b) Neither the Facility Agent nor the Arranger shall have any
duty
(i) either initially or on a continuing basis to provide
any Lender with any credit or other information with
respect to the financial condition or affairs of the
Borrower or any related entities whether coming into
its possession or that of any related entities of the
Facility Agent or the Arranger before the entry into
this Agreement or at any time thereafter;
(ii) unless specifically requested to do so by a Lender, to
request any certificates or other documents from the
Borrower hereunder.
(c) The Facility Agent need not disclose any information relating
to the Borrower if such disclosure would or might in the
opinion of the Facility Agent constitute a breach of any law
or any duty of secrecy or confidence.
22.11 FACILITY AGENT AND ARRANGER INDIVIDUALLY
(a) Each of the Facility Agent and the Arranger shall have the
same rights and powers hereunder as any other Lender and may
exercise the same as though it were not the Facility Agent or
the Arranger.
33
(b) The Facility Agent and the Arranger may accept deposits from,
lend money to and generally engage in any kind of banking,
trust, advisory or other business whatsoever with the Borrower
and its related entities and accept and retain any fees
payable by the Borrower or any of its related entities for its
own account in connection therewith without liability to
account therefore to any Lender.
22.12 INDEMNITY
Each Lender agrees to indemnify the Facility Agent on demand (to the
extent not reimbursed by the Borrower under this Agreement) for any and
all liabilities, losses, damages, penalties, actions, judgements,
costs, expenses or disbursements of any kind whatsoever which may be
imposed on, incurred by or asserted against the Facility Agent in any
way relating to or arising out of its acting as the Facility Agent
under this Agreement or performing its duties hereunder or any action
taken or omitted by the Facility Agent hereunder (including, without
limitation, the charges and expenses referred to in Art. 24 and all
stamp taxes on or in connection with this Agreement to the extent not
reimbursed by the Borrower). Such indemnification by each Lender shall
be pro rata to its Lender's Commitment or (as the case may be)
participation in the Advance. Notwithstanding the foregoing, no Lender
shall be liable for any portion of the foregoing resulting from the
Facility Agent's gross negligence or wilful misconduct.
22.13 LEGAL RESTRICTIONS
The Facility Agent may refrain from doing anything which would or might
in its opinion (i) be contrary to the law of any jurisdiction or any
official directive or (ii) render it liable to any Person or (iii)
violate its banker's duty of secrecy, and may do anything which in its
opinion is necessary to comply with any such law or directive.
22.14 RESIGNATION AND REMOVAL
The Facility Agent may, after prior consultation with the Borrower and
subject to the Borrower's consent, resign by giving written notice
thereof to the Lenders and the Borrower. In addition, the Majority
Lenders may, by giving at least 30 days' notice to the Facility Agent,
the other Lenders and the Borrower, as appropriate, remove the Facility
Agent. In either such event the Majority Lenders may appoint a
successor to such Facility Agent. If the Majority Lenders have not,
within 60 days after such notice of resignation or removal, appointed a
successor Facility Agent which shall have accepted such appointment,
the retiring or removed Facility Agent shall have the right to appoint
a successor Facility Agent. The resignation or removal of the retiring
or removed Facility Agent and the appointment of any successor Facility
Agent shall both become effective upon the successor notifying all the
parties thereto in writing that it accepts such appointment, whereupon
the successor Facility Agent shall succeed to the position of the
retiring or removed Facility Agent and the term "Facility Agent" herein
shall mean such successor Facility Agent. This Art. 22.14 shall
continue to benefit a retiring or removed Facility Agent in respect of
any action taken or omitted by it hereunder while it was Facility
Agent.
34
22.15 RECOVERY OF PAYMENTS
Unless the Facility Agent shall have received written notice from a
Lender or the Borrower not less than two Business Days prior to the
date upon which such Lender or the Borrower (the "party liable") is to
pay an amount to the Facility Agent for transfer to the Borrower or any
Lender respectively (the "payee") that the party liable does not intend
to make that amount available to the Facility Agent, the Facility Agent
may assume that the party liable has paid such amount to the Facility
Agent on the due date in accordance herewith. In reliance upon such
assumption, the Facility Agent may (but shall not be obliged to) make
available a corresponding sum to the payee(s). In the event that such
payment is not made to the Facility Agent, the payee(s) shall forthwith
on demand repay such sum to the Facility Agent together with interest
on such amount until its repayment at a rate determined by the Facility
Agent reflecting its cost of funds. The provisions of this Art. 22.15
are without prejudice to any rights the Facility Agent and the payee
may have against the party liable.
22.16 ASSIGNMENTS
The Facility Agent may treat each Lender as a party as entitled to
payment hereunder until it has received written notice from the Lender
unless concerned to the contrary.
22.17 EXEMPTION FROM ART. 181 GERMAN CIVIL CODE
The Facility Agent is hereby granted exemption from the restriction of
Art. 181 of the German Civil Code or any similar restriction of the
applicable laws of any other country.
22.18 CONFIDENTIALITY
In acting as the Facility Agent for the Lenders, the Facility Agent's
agency division shall be treated as a separate entity from any other of
its divisions or departments, and, notwithstanding the foregoing
provisions of this Art. 22, in the event that the Facility Agent should
act for the Borrower in any capacity in relation to any matter other
than those directly or indirectly related to its capacity as Facility
Agent for the Lenders hereunder, then any information given by the
Borrower to the Facility Agent in such other capacity may be treated as
confidential by the Facility Agent.
ART. 23
FEES
23.1 COMMITMENT FEE
The Borrower shall pay to the Facility Agent for distribution to the
Lenders a Commitment Fee of 0.25 % p.a. on the undisbursed amount of
the Facility from the signing date of this Agreement until the end of
the Availability Period. The Commitment Fee, if any, is payable within
five Business Days after the end of the Availability Period.
35
23.2 UNDERWRITING FEE
The Borrower shall pay to the Arranger for distribution to the Lenders
an Underwriting Fee in the amount of DM 213,715 payable within five (5)
Business Days after the signing of this Agreement..
23.3 ARRANGEMENT FEE
The Borrower shall pay to the Arranger for its own account an
Arrangement Fee in an amount to be agreed upon in a side letter of even
date payable within five (5) Business Days after the signing of this
Agreement..
23.4 VAT
Any fee referred to in this Art. 23 (Fees) is exclusive of any value
added tax or any other Tax which might be chargeable in connection with
that fee. If any value added tax or other Tax is so chargeable, it
shall be paid by the Borrower at the same time as it pays the relevant
fee.
ART. 24
EXPENSES
24.1 The Borrower shall pay to Bayerische Hypo- und Vereinsbank
Aktiengesellschaft in its capacity as Facility Agent such amount in
reimbursement of all costs, charges and expenses incurred by it in or
in connection with the execution of the Pledge Agreement (including VAT
thereon and including, but not limited to, the fees and expenses of a
notary public and travel expenses, if any; "Kosten der
Sicherheitenbestellung", but excluding any legal fees and expenses for
legal advisers). Such amount is payable within five (5) Business Days
after the date hereof.
24.2 The Borrower shall reimburse Bayerische Hypo- und Vereinsbank
Aktiengesellschaft in its capacity as Facility Agent and Arranger and
the Lenders for the reasonable charges and expenses (including value
added tax or any similar tax thereon and including the fees and
expenses of legal advisers) incurred by them in connection with the
enforcement of any rights under this Agreement and the Pledge
Agreement.
ART. 25
STAMP DUTIES
The Borrower shall pay and forthwith on demand indemnify each of the Facility
Agent, the Arranger and the Lenders against any liability it incurs in respect
of any stamp, registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of this Agreement.
ART. 26
WAIVERS; REMEDIES CUMULATIVE
No failure to exercise and no delay in exercising on the part of the Facility
Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or
36
further exercise thereof or the exercise of any other right, power or privilege.
No waiver by the Facility Agent, the Arranger or any Lender shall be effective
unless it is in writing. The rights and remedies of each of the Facility Agent,
the Arranger and the Lenders herein provided are cumulative and not exclusive of
any rights or remedies provided by law.
ART. 27
NOTICES
27.1 Any correspondence, reports, announcements, consultations,
documentation and communication between the parties to this Agreement
shall be in the German, or in the English language and shall be in
writing, by mail, or by telefax; the latter case requiring confirmation
by mail.
27.2 Without prejudice to any future change of address, all correspondence
from the Borrower to the Lenders shall be sent to the Facility Agent 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 Lenders or the Facility Agent to the
Borrower shall be sent to the following address:
FiberMark GmbH x/x XxxxxXxxx Xxxxxxx XxxX & Xx.
Xxxxxxxxx Xxxxxxx 00
00000 Xxxxxxxxxxx-Xxxxxxxxx
Attention: Xx. Xxxxxx Xxxxxxx
Fax: x00-0000-000000 (with copy to Mr. Xxxxx Xxxxx,
Fax: x000-000-0000000)
27.3 Without prejudice to any future change of address or account, all
correspondence from the Facility Agent to the Lenders shall be sent and
all payments from the Facility Agent to the Lenders shall be made to
the addresses and accounts as transferred to the Facility Agent by each
Lender.
ART. 28
ASSIGNMENTS, TRANSFER, SUBSTITUTION
28.1 SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Arranger, the Facility Agent and their
respective substitutes, successors and assignees.
28.2 NO ASSIGNMENTS BY THE BORROWER
The Borrower may not assign or transfer all or any of its rights,
benefits and obligations hereunder.
37
28.3 ASSIGNMENTS BY THE LENDERS
At its own cost any Lender may, prior to a written consent by the
Borrower, such consent not to be unreasonably withheld, at any time
assign and transfer all or any part of its rights, benefits and
obligations (to effect a "Vertragsubernahme") hereunder, provided that
an amount of principal and the amount of interest accrued thereon may
not be assigned or transferred separately.
Unless and until an assignee has agreed with the Facility Agent and the
Lenders in writing that it shall be under the same obligations toward
each of them as it would have been under if it had been a party hereto,
neither the Facility Agent nor any Lender shall be obliged to recognise
such assignee as having the rights against it which such assignee would
have had if it had been a party hereto. For the purposes of this Art.
28.3, each Lender hereby authorises the Facility Agent to execute on
its behalf any agreement with any assignee pursuant to which such
assignee agrees that it shall be under the same obligations towards
each of the Lenders as it would have been had it been a party hereto.
For each assignment effected pursuant to the above provisions, the
Facility Agent shall receive an assignment registration fee in the
amount of DM 1,000 from the respective assignee, failing whom from the
assigning Lender, which shall become due and payable five Business Days
after the date of the agreement referred to in Art. 28.3 above.
28.4 CHANGE OF LENDING OFFICE
Each Lender may at any time and at its expense change its lending
office, but such Lender shall give the Facility Agent prior written
notice thereof and until receipt of such notice the Facility Agent may
assume that no such change has occurred.
28.5 DISCLOSURE
Each Lender may disclose to any proposed assignee, transferee or
sub-participant or any proposed substitute therefore, any information
about this Agreement and any information in the possession of such
Lender relating to the Borrower.
28.6 SYNDICATION
The Borrower acknowledges that primary syndication of the Facility may
take place and undertakes to assist and co-operate with the Facility
Agent and the Arranger in syndication by, inter alia, expediting
reasonable site visits of persons who have been invited by the Arranger
to participate in the Facility ("Invitees") and by participating in a
reasonable number of presentations to Invitees.
ART. 29
CURRENCY INDEMNITY
29.1 Payment made by the Borrower to the Lenders on the basis of any
judgement in a currency (hereinafter referred to as the "Judgement
Currency") other than Deutsche Marks shall only discharge the
Borrower's obligation to the extent of the amount in Deutsche Marks
that the Lenders, immediately upon receipt of
38
such payment, would be able to purchase with the amount so received on
a recognised foreign exchange market. In the event that such amount in
the Judgement Currency is less than the amount due in Deutsche Marks
pursuant to the provisions of this Agreement, then the Borrower shall
be liable to pay the difference; such obligation of the Borrower being
a separate and independent obligation, forming the basis of a separate
cause of action.
29.2 The Borrower waives any rights it may have in any jurisdiction to pay
any amount hereunder in a currency other than that in which it is
expressed to be payable hereunder.
ART. 30
PRO RATA SHARING
30.1 Except for payments to a Lender from the Facility Agent which were
received by the Facility Agent for the account of such Lender in
accordance with this Agreement, if a Lender shall at any time receive
satisfaction by way of payment or foreclosure of any collateral or
security or a declaration of set-off made by such Lender of all or a
part of any amount payable by the Borrower hereunder in a proportion
which, in relation to any amounts received by any other Lender or
Lenders, represents more than its percentage participation for the time
being in the Advance, then such Lender shall promptly purchase from the
other Lenders their respective participations in the Advance including
the claims for payment of interest maintained by those other Lenders as
may be necessary to cause the purchasing Lender to share the amount in
excess of its percentage participation for the time being in the
Advance rateably with the other Lenders. Each of the Lenders hereby
agrees to sell and transfer a participation in its Advance, including
the claims for payment of interest as may be necessary to give effect
to this provision.
30.2 Notwithstanding Art. 30.1, no portion of any payment or satisfaction of
all or part of any amount payable to such Lender hereunder received in
connection with or as a result of legal proceedings brought by or in
the name of such Lender shall be payable pursuant to Art. 30.1, to any
other Lender where each other Lender has had an opportunity to join in
such proceedings yet has declined to do so. Each Lender shall give
prior written notice to each other Lender of its intention to institute
legal proceedings in any jurisdiction.
30.3 If at any time any Lender (the "Refunding Bank") shall be required to
refund any amount which has been paid to or received by it on account
of any part of any amount payable by the Borrower hereunder and in
respect of which it has paid an amount to any other Lender pursuant to
Art. 30.1, such other Lender shall against re-transfer of the purchased
participation in the Advance including the claims for payment of
interest repay a proportionate amount of the sum so refunded together
with such amount (if any) as is necessary to reimburse the Refunding
Bank the appropriate portion of any interest it shall have been obliged
to pay when refunding such amount as aforesaid for the period whilst
such other Lender held the amounts to be refunded.
30.4 If a Lender receives satisfaction as set forth in Art. 30.1, it shall
give notice thereof to the Facility Agent. The Facility Agent shall
then calculate the amount to be paid pursuant to Art. 30.1. Such Lender
shall pay this amount within the time period set forth by the Facility
Agent to the Facility Agent which will then distribute the amount among
the other Lenders. Each of the Lenders hereby
39
authorises the Facility Agent to assign to the Lender receiving such
satisfaction and to accept the assignment of, such participations in
the Advance including claims for payment of interest on their behalf as
set forth in Art. 30.1. The Facility Agent shall confirm the
assignments to all Lenders in writing every time such assignments take
place. Art. 30.4 sentences 1 through 3 apply mutatis mutandis in case
of a refund pursuant to Art. 30.3.
ART. 31
SET-OFF
Each Lender may set off any matured obligation owed by the Borrower under this
Agreement (to the extent beneficially owned by that Lender) against any
obligation (whether or not matured) owed by the Lender to the Borrower,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Lender may
convert either obligation at a market rate of exchange in its usual course of
business for the purpose of set-off.
ART. 32
MISCELLANEOUS
32.1 AMENDMENTS
Any alteration or amendment to this Agreement shall be in writing and
requires the consent of the Borrower and of the Majority Lenders
provided, however, that any alteration or amendment to Art. 1.19, 1.38,
2.2, 2.3, 4, 5, 7, 9, 12, 15, 16, 17, 19, 20, 21, 28.2, 30, 32.1 and
32.3 requires the consent of all Lenders. Verbal agreements shall have
no legal effect.
32.2 GOVERNING LAW
The form and contents of this Agreement, as well as the rights and
obligations of the Lenders, the Borrower, the Facility Agent and the
Arranger shall be construed according to the laws of the Federal
Republic of Germany in every respect.
32.3 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.
32.4 PLACE OF PERFORMANCE
Place of performance of this Agreement shall be Munich.
32.5 JURISDICTION
The applicable place of jurisdiction for all disputes arising out of or
in connection with this Agreement shall be Munich. The Lenders and the
Facility Agent may
40
however, at their 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 Borrower are situated. In the
latter case the laws of the Federal Republic of Germany shall, pursuant
to Art. 32.3, also be applicable.
32.6 ANNEXES
The Annexes 1 through 7 form part of this Agreement.
32.7 COUNTERPARTS
This Agreement has been executed in the English language in 3 (three)
counterparts. One copy shall be provided to the Borrower and to each of
the Arranger and Bayerische Hypo- und Vereinsbank Aktiengesellschaft as
Lender. Each executed copy shall have the effect of an original.
41
September 15, 1999
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
.............................................
(in its capacity as Arranger, Lender and Facility Agent)
September 15, 1999
FiberMark GmbH
.............................................
42
ANNEX 1
DRAWDOWN REQUEST
[FiberMark GmbH Letterhead]
To: Bayerische Hypo- und Vereinsbank XX
XXX 0
Xxxxxxx Xxxxxxxx of Germany
Telefax: + 00-00-00000000
Date: [ ]
Pursuant to Art. 5.2 of the Agreement dated September 15, 1999 between us and
the Lenders (the "Loan Agreement"), we hereby request the following drawdown
under the Loan Agreement:
(a) Drawdown Date: [ - ]
(b) Amount of Advance: [ - ]
(c) Interest Period: [ - ]
(d) The account to which the
Advance is to be transferred: [ - ]
WE HEREBY CONFIRM THAT:
(i) the representations and warranties set out in Art. 18 of the Loan
Agreement are correct at the date hereof; and
(ii) no Event of Default set out in Art. 21 of the Loan Agreement (or any
event which with the giving of notice or lapse of time might constitute
an Event of Default) has occurred and is continuing or might result
from the making of the Advance.
FiberMark GmbH
-----------------------------------------------
43
ANNEX 2
NOTICE TO LENDERS OF ADVANCE DUE
[Bayerische Hypo- und Vereinsbank's Letterhead]
To: [Lender]
Date: [ - ]
Pursuant to Art. 5.3 of the agreement dated Septemner 15, 1999 between FiberMark
GmbH and the Lenders (the " Loan Agreement"), we hereby give notice of the
Borrower's Drawdown Request under the Loan Agreement:
(a) Drawdown Date: [ - ]
(b) Amount of Advance: [ - ]
(c) Lender's participation: [ - ]
(d) Account: [ - ]
We confirm that all conditions precedent in accordance with Art. 4 of the Loan
Agreement have been fulfilled or complied with by the Borrower.
We request that you transfer the above amount, being your Share of the Advance
to our Account No........... with..............no later than 10:00 a.m. Munich
time on the Drawdown Date.
BAYERISCHE HYPO- und VEREINSBANK AG
-------------------------
44
ANNEX 3
GROUP STRUCTURE CHART
[GRAPHIC]
45
ANNEX 4
PLEDGE AGREEMENT OVER SHARES OF
PAPIERFABRIK LAHNSTEIN GmbH
46
ANNEX 5
PLEDGE AMENDMENT AGREEMENT IN RELATION
TO FIBERMARK XXXXXXX Gmbh & CO.
47
ANNEX 6
LOAN AMENDMENT AGREEMENT IN RELATION
TO THE LOAN AGREEMENT BETWEEN THE BORROWER
AND THE LENDER DATED JANUARY 7, 1998
TO FIBERMARK XXXXXXX GMBH & CO.
48
ANNEX 7
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LOAN ACCOUNT TRANCHE MATURITY INTEREST RATE
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6457460 6 Mio DM 17.09.2000 5,40%
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6457479 6 Mio DM 17.09.2001 6,00%
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6457487 4,125 Mio DM 17.09.2002 6,40%
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6457495 4,125 Mio DM 17.09.2003 6,70%
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6457509 4,125 Mio DM 17.09.2004 6,95%
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6457517 4,125 Mio DM 17.09.2005 7,10%
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