L O A N A G R E E M E N T
in the amount of
DM 54,000,000
between
zetaphoenicis Beteiligungs GmbH (the "Borrower")
on the one hand
and
BAYERISCHE VEREINSBANK AKTIENGESELLSCHAFT
(hereinafter referred to as "Arranger", "Lender" or "Facility Agent", as
the case may be)
on the other hand
2
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 [reserved]
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 Events of Default 27
Art. 21 Rights and Obligations of Facility Agent 30
Art. 22 Fees 34
Art. 23 Expenses 34
3
Art. 24 Stamp Duties 35
Art. 25 Waivers; Remedies Cumulative 35
Art. 26 Notices 35
Art. 27 Assignments, Transfer, Substitution 36
Art. 28 Currency Indemnity 37
Art. 29 Pro Rata Sharing 37
Art. 30 Set-off 38
Art. 31 Miscellaneous 38
Annexes:
Drawdown Request Annex 1
Notice to Lenders of Advance Due Annex 2
Group Structure Chart Annex 3
Pledge Agreement over Shares of Steinbeis ▇▇▇▇▇▇▇ Annex 4
GmbH
Interest Rate Annex 5
4
Preamble
WHEREAS, Bayerische Vereinsbank Aktiengesellschaft shall provide the Borrower
with a seven year Loan Facility in the amount of DM 54,000,000 (in words:
Deutsche Marks fifty four million) for the purpose of financing the acquisition
of Steinbeis ▇▇▇▇▇▇▇ GmbH; and
WHEREAS, the Facility will be granted in seven 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 seven different repayment dates
WHEREAS, the Borrower acknowledges that Bayerische 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. ▇▇▇▇▇▇▇ of the Borrower with
Bayerische Vereinsbank Aktiengesellschaft, Rosenheim Branch, Banking Code
▇▇▇▇▇▇▇▇, 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 "Advance" shall mean the amount drawn down by the Borrower under Tranche
1, Tranche 2, Tranche 3, Tranche 4, Tranche 5, Tranche 6 or Tranche 7,
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.
1.3 "Agreement" shall mean this agreement including all its annexes.
1.4 "Arranger" shall mean Bayerische Vereinsbank Aktiengesellschaft.
1.5 "Availability Period" shall mean the period from the date of this
Agreement until January 31, 1998.
1.6 "Borrower" shall mean zetaphoenicis Beteiligungs GmbH.
1.7 "Business Day" shall mean any day on which commercial banks and foreign
exchange markets in Munich and London are open for business.
1.8 "Closing Date" shall mean the date defined as closing date in Article 4.2
of the Purchase Agreement.
5
1.9 "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.
1.10 "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.
1.11 "Drawdown Request" shall mean a notice of borrowing substantially in the
form as attached as Annex 1.
1.12 "EBITDA" shall mean, in respect of any period, the consolidated ordinary
earnings ("Ergebnis der gewohnlichen Geschaftstatigkeit" pursuant to ss.
275 Sect. 2, Nr. 14 HGB) 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 ss.
275 Sect. 2, Nr. 7 a HGB) during such period.
1.13 "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.
1.14 "Equity " shall mean, at any time, on a consolidated basis of the Group
the equity determined in accordance with ss. 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 ss. 272 Sect. 1, S. 2 HGB)
(b) deducting any amount attributable to a revaluation (write ups) of
assets pursuant to ss. 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 toss.266 Sect. 2 B. II. 2
and 3 HGB as well as "Finanzanlagen" pursuant toss.266 Sect. 2 A.
III. HGB).
1.15 "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").
1.16 "Event of Default" shall have the meaning as given to it in Art. 20.
6
1.17 "Facility Agent" shall mean Bayerische Vereinsbank Aktiengesellschaft or
such other bank as may from time to time be appointed in its place
pursuant to the provisions of Art. 21.14.
1.18 "Final Maturity Date" shall mean the seventh anniversary of the Drawdown
Date
1.19 "Group" shall mean the Borrower, thetaphoenicis GmbH and their direct and
indirect material subsidiaries from time to time.
1.20 "Group Structure Chart" shall mean the chart in the form as attached as
Annex 3.
1.21 "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.
1.22 "HGB" shall mean Handelsgesetzbuch, being the German Commercial Code.
1.23 "Increased Costs" shall have the meaning as defined in Art. 16.
1.24 "Indebtedness" ("Verschuldung")shall mean any indebtedness for borrowed
money or any Guarantee or other indemnity in respect of any Indebtedness.
1.25 "Interest Cover Ratio" shall mean the ratio of EBITDA to Total Interest
Expenses.
1.26 "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.
1.27 "Interest Period" shall have the meaning given to it in Art. 10.
1.28 "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 5 to
this Agreement.
1.29 "Judgement Currency" shall have the meaning given to it in Art. 28.1.
1.30 "Legal Changes" shall have the meaning given to it in Art. 15, unless
otherwise specified in this Agreement.
1.31 "Lender" or "Lenders", as the case may be, shall mean Bayerische
Vereinsbank Aktiengesellschaft and any other bank or financial institution
to which Bayerische 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. 27.3., it
being understood that the choice of any lender bank by the Facility Agent
requires the Borrower's approval.
7
1.32 "Lender's Commitment" shall mean with respect to Bayerische Vereinsbank
Aktiengesellschaft, at the date of signing this Agreement, the amount of
DM 54,000,000, 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.
1.33 "Lender's Share" shall mean the ratio of a Lender's Commitment to the
aggregate of all Lender's Commitments from time to time.
1.34 "Leverage Ratio" shall mean the ratio of Total Debt to EBITDA.
1.35 "Loan Facility" or "Facility" shall have the meaning given to it in Art.
2.1.
1.36 "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 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.
1.37 "Notice of Default" shall have the meaning given to it in Art. 21.6.
1.38 "Original Financial Statement" or "Original Financial Statements" shall
mean, as the case may be, the audited or, if no audit has been made, the
un-audited 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 Steinbeis ▇▇▇▇▇▇▇ GmbH for the fiscal years 1995 and 1996, the
preliminary balance sheet and profit and loss account as of December 15,
1997 of Steinbeis ▇▇▇▇▇▇▇ GmbH and as to the Borrower and thetaphoenicis
Beteiligungs GmbH the opening balance sheets.
1.39 "Original Lender" shall mean Bayerische Vereinsbank Aktiengesellschaft
1.40 "Parent" shall mean FiberMark Inc., Brattleboro, Vermont, United States of
America.
1.41 "Permitted Encumbrances" shall mean
(i) Encumbrances in relation to Indebtedness already in existence at the
date of signing this Agreement; or
(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.
8
1.42 "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.
1.43 "Purchase Agreement" shall mean the sale and purchase agreement as dated
November 26, 1997 between Steinbeis Holding GmbH and the Borrower.
1.44 "Refunding Bank" shall have the meaning given to it in Art. 29.3.
1.45 "Repayment Dates" shall mean the dates as specified in the
schedule contained in Art. 7.
1.46 "Repayment Amount " shall have the meaning given to it in Art. 7.
1.47 "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.
1.48 "Total Debt" shall mean on a consolidated basis of the Group the total
amounts of debts arising from bonds ("Anleihen" pursuant to ss. 266 Sect.
3. C. 1 HGB), bank loans including capital expenditure facilities and
working capital facilities ("Verbindlichkeiten gegenuber Kreditinstituten"
pursuant to ss. 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 ss. 266 Sect. 3. C. Nr. 5
HGB).
1.49 "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 deposits held by any member of the
Group.
1.50 "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.
1.51 "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.
1.52 "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.
1.53 "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.
1.54 "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.
9
1.55 "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.
1.56 "Tranche 7" 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 seven
years.
1.57 "Tranches" shall mean the sum of the Tranche 1, Tranche 2, Tranche 3,
Tranche 4, Tranche 5, Tranche 6, and Tranche 7, and "Tranche" shall mean
each one of them.
1. 58 "VAT" shall mean value added tax.
10
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 54,000,000 (in words: Deutsche Marks fifty four
million) 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. 20 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
Steinbeis ▇▇▇▇▇▇▇ GmbH, Brannenburg. 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:
11
(a) copy, certified to be a true copy of the articles of association and
such other corporate documents relating to the Borrower and to
thetaphoenicis 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 thetaphoenicis 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 December 15, 1997 for Steinbeis ▇▇▇▇▇▇▇ 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 Steinbeis ▇▇▇▇▇▇▇ 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) evidence that the Parent has provided an amount as equity (including
subordinated shareholder loans) to the Borrower on an account with
Bayerische Vereinsbank AG which is the balance of the purchase price
being payable by the Borrower pursuant to Sect. 3 of the Purchase
Agreement and DM 54,000,000;
(h) 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.
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:
(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. 20 (or any event which with the
giving of notice or lapse of time might constitute an Event of
Default) has occurred and is continuing.
12
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 seven (7) 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 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
13
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 the seven (7) 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 date 72 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 7 the Final Maturity Date.
---------------------------------------------------------------------------
14
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 4,000,000
being the date 12 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 2 Repayment Date DM 4,000,000
being the date 24 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 3 Repayment Date DM 4,000,000
being the date 36 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 4 Repayment Date DM 10,500,000
being the date 48 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 5 Repayment Date DM 10,500,000
being the date 60 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 6 Repayment Date DM 10,500,000
being the date 72 months after the
Drawdown Date
---------------------------------------------------------------------------
Tranche 7 Repayment Date DM 10,500,000
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
15
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.
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.
16
(d) No amount prepaid under this Agreement may subsequently be
reborrowed.
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 January 12, and July 12, of each calendar year until the
Final Repayment Date, the first due date to be July 12, 1998.
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
[reserved]
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. 20 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, retention or lien, restriction or condition; unless such claims
to be set-off by the Borrower are undisputed or confirmed by a court
decision.
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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
participations in the Advance bear to the whole amount of the Advance, as
they are received by the Facility Agent.
Art. 15
Illegality
If 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
20
made within three (3) Business Days of the Borrower's receipt of such
notice). 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 ▇▇▇ 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
22
enforcement in the courts of the Federal Republic of Germany. The choice
of the 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".
(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.
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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
25
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 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, 1998 ;
(ii) on June 30 and on December 30 in each calendar year, the Equity
Ratio is not less than 20 %, starting on December 30, 1998; and
(iii) on June 30 and on December 30 in each calendar year, the Leverage
Ratio is not more than 5, starting on December 30, 1998.
In the event that the Borrower will introduce new accounting standards, or
if the Lenders agree to a merger or sale of Group companies as stated in
Art. 19.4,
26
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.
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. 1.13
(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. 20.
(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
The Borrower or any member of the Group will not 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. The
Borrower will furthermore not sell or otherwise dispose of any of its
material subsidiaries which would materially adversely affect the
Borrower's ability to perform its obligations hereunder. It is expressly
agreed that the Borrower shall be authorised to convert Steinbeis ▇▇▇▇▇▇▇
GmbH into a partnership ("Offene Handelsgesellschaft") or a limited
partnership ("Kommanditgesellschaft"), as the
27
case may be, as well as to possibly merge Steinbeis ▇▇▇▇▇▇▇
Unterstutzungskasse GmbH (i.G.) with a member of the Group.
(f) Limitation of Expenditure ("Investitionsausgaben")
The Borrower or any member of the Group will not make any payments on
account of capital expenditure which are not part of the capital
expenditure 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 without informing the Facility Agent prior to such
expenditure.
(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. 3 of the Purchase Agreement shall
exceed the aggregate of the amounts of USD 40,000,000 (in words: United
States Dollar forty million) and of DM 5,315,000 (in words: Deutsche ▇▇▇▇
five million three hundred fifteen 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 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 Steinbeiss ▇▇▇▇▇▇▇ GmbH to the Borrower, if any,
shall be contributed as equity of the Borrower 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
The Borrower nor any other member of the Group undertakes not to create
any other Indebtedness with any bank or other financial institution in the
amount exceeding DM 10,000,000 without the prior written consent of the
Facility Agent.
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.
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Art. 20
Events of Default
20.1 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) (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
Borrower's incapability to perform its payment obligations
under this Agreement, provided however that the termination
right pursuant to this Art. 20.1.d)(iv) in connection with
Art. 20.2. below may be exercised only if so confirmed by the
Majority Lenders; or
(e) any order (provisional or final) is made by court resolution passed
for the general suspension of payments or dissolution, termination
of existence,
29
liquidation, winding-up, bankruptcy, insolvency, judicial management
or administration of the Borrower; or
(f) 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
(g) 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
(h) 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
(i) 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
(j) 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
(k) 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
(l) at any time it is unlawful for the Borrower to perform any of its
material obligations hereunder; or
(m) at any time any dividend payments (excluding dividend payments which
are used to increase the equity of the Borrower
["▇▇▇▇▇▇-aus-hol-zuruck-Verfahren"]) or interest payments on
shareholder loans are made by the Borrower which are 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
(n) the Borrower ceases to be a majority-owned subsidiary of the Parent.
(o) the Share Pledge Agreement as attached in Annex 4 does not become
legally valid and effective on the Closing Date.
20.2 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
30
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. 21
Rights and Obligations of Facility Agent
21.1 Appointment
Bayerische 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.
21.2 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.
21.3 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.
31
21.4 Delegation
The Facility Agent may act hereunder through its officers, employees or
agents.
21.5 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.
21.6 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.
21.7 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.
21.8 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.
21.9 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
32
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.
21.10 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.
(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.
21.11 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.
(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.
21.12 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
33
hereunder or any action taken or omitted by the Facility Agent hereunder
(including, without limitation, the charges and expenses referred to in
Art. 23 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.
21.13 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.
21.14 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. 21.14 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.
21.15 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. 21.15 are without prejudice to
any rights the Facility Agent and the payee may have against the party
liable.
34
21.16 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.
21.17 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.
21.18 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. 21, 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. 22
Fees
22.1 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.
22.2 Underwriting Fee
The Borrower shall pay to the Arranger for distribution to the Lenders an
Underwriting Fee in the amount of DM 270,000 payable within five (5)
Business Days after the signing of this Agreement, but in any event not
prior to January 1, 1998.
22.3 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, but in
any event not prior to January 1, 1998.
22.4 VAT
Any fee referred to in this Art. 22 (Fees) is exclusive of any value added
tax or any other Tax which might be chargeable in connection with that
fee. If any
35
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. 23
Expenses
23.1 The Borrower shall pay to Vereinsbank 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.
23.2 The Borrower shall reimburse Vereinsbank 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. 24
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. 25
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 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. 26
Notices
26.1 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.
36
26.2 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 Vereinsbank Aktiengesellschaft
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇/▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇/▇▇. ▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇▇▇▇▇▇
All correspondence from the Lenders or the Facility Agent to the Borrower
shall be sent to the following address:
zetaphoenicis Beteiligungs GmbH
c/o Steinbeis ▇▇▇▇▇▇▇ GmbH
Weidacher Stra(beta)e 30
83620 Feldkirchen-Westerham
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇▇▇ (with copy to Mr. ▇▇▇▇▇ ▇▇▇▇▇, Fax:
▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇)
26.3 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. 27
Assignments, Transfer, Substitution
27.1 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.
27.2 No Assignments by the Borrower
The Borrower may not assign or transfer all or any of its rights, benefits
and obligations hereunder.
27.3 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.
37
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. 27.3,
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.
27.3 above.
27.4 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.
27.5 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.
27.6 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.
38
Art. 28
Currency Indemnity
28.1 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 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.
28.2 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. 29
Pro Rata Sharing
29.1 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.
29.2 Notwithstanding Art. 29.1, 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. 29.1, 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.
29.3 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. 29.1,
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
39
to pay when refunding such amount as aforesaid for the period whilst such
other Lender held the amounts to be refunded.
29.4 If a Lender receives satisfaction as set forth in Art. 29.1, it shall give
notice thereof to the Facility Agent. The Facility Agent shall then
calculate the amount to be paid pursuant to Art. 29.1. 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 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. 29.1. The
Facility Agent shall confirm the assignments to all Lenders in writing
every time such assignments take place. Art. 29.4 sentences 1 through 3
apply mutatis mutandis in case of a refund pursuant to Art. 29.3.
Art. 30
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. 31
Miscellaneous
31.1 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. 1.18, 1.36, 2.2, 2.3, 4,
5, 7, 9, 12, 15, 16, 17, 19, 20, 27.2, 29, 31.1 and 31.2 requires the
consent of all Lenders. Verbal agreements shall have no legal effect.
31.2 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.
31.3 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.
31.4 Place of Performance
40
Place of performance of this Agreement shall be Munich.
31.5 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 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. 31.2, also be applicable.
31.6 Annexes
The Annexes 1 through 5 form part of this Agreement.
31.7 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 Vereinsbank Aktiengesellschaft as Lender. Each
executed copy shall have the effect of an original.
41
January 7, 1998
Bayerische Vereinsbank Aktiengesellschaft
........................................................
(in its capacity as Arranger, Lender and Facility Agent)
January 7, 1998
zetaphoenicis Beteiligungs GmbH
........................................................
42
Annex 1
Drawdown Request
[zetaphoenicis Beteiligungs GmbH Letterhead]
To: Bayerische Vereinsbank AG
VCF/ALF ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Telefax: + ▇▇-▇▇-▇▇▇▇▇▇▇▇
Date: [ ]
Pursuant to Art. 5.2 of the Agreement dated [ o ], 1998 between us and the
Lenders (the "Loan Agreement"), we hereby request the following drawdown under
the Loan Agreement:
(a) Drawdown Date: [o]
(b) Amount of Advance: [o]
(c) Interest Period: [o]
(d) The account to which the
Advance is to be transferred: [o]
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. 20 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.
zetaphoenicis Beteiligungs GmbH
---------------------------------
43
44
Annex 2
Notice to Lenders of Advance Due
[Bayerische Vereinsbank's Letterhead]
To: [Lender]
Date: [o]
Pursuant to Art. 5.3 of the agreement dated [ o ], 1998 between zetaphoenicis
Beteiligungs GmbH and the Lenders (the " Loan Agreement"), we hereby give notice
of the Borrower's Drawdown Request under the Loan Agreement:
(a) Drawdown Date: [o]
(b) Amount of Advance: [o]
(c) Lender's participation: [o]
(d) Account: [o]
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 VEREINSBANK AG
-------------------------
45
Annex 3
Group Structure Chart
[Graphic omitted]
46
Annex 4
Pledge Agreement over Shares of
Steinbeis ▇▇▇▇▇▇▇ GmbH
47
Annex 5
--------------------------------------------------------------------------------
Loan Account Tranche Maturity Interest Rate
--------------------------------------------------------------------------------
6428134 4,0 Mio DM up to the 12.01.1999 5,765 %
--------------------------------------------------------------------------------
6428142 4,0 Mio DM up to the 12.01.2000 6.125 %
--------------------------------------------------------------------------------
6428436 4,0 Mio DM up to the 12.01.2001 6,415 %
--------------------------------------------------------------------------------
6428444 10,5 Mio DM up to the 12.01.2002 6,605 %
--------------------------------------------------------------------------------
6428452 10,5 Mio DM up to the 12.01.2003 6,775 %
--------------------------------------------------------------------------------
6428460 10,5 Mio DM up to the 12.01.2004 6,895 %
--------------------------------------------------------------------------------
6428479 10,5 Mio DM up to the 12.01.2005 7,015 %
--------------------------------------------------------------------------------
