EXHIBIT 10.4
PLEDGE AMENDMENT AGREEMENT
dated September 15, 1999
between
FIBERMARK BETEILIGUNGS GMBH
AND
FIBERMARK GMBH
(the "Pledgors")
on the one hand
and
BAYERISCHE HYPO- UND VEREINSBANK AG
(the "Pledgee")
on the other hand
TABLE OF CONTENTS
Page
Art. 1 Amendment 3
Art. 2 Notices, Language 3
Art- 3 Partial Invalidity 4
Art. 4 Miscellaneous 5
WHEREAS, Bayerische Hypo- und Vereinsbank Aktiengesellschaft have granted a loan
facility dated January 7, 1998 to FiberMark GmbH for the amount of DM 54,000,000
(in words: Deutsche Xxxx fifty four million) for the purpose of financing the
acquisition of Steinbeis Xxxxxxx GmbH (the "Loan Agreement I"), and
WHEREAS, Bayerische Hypo- und Vereinsbank Aktiengesellschaft shall provide
FiberMark GmbH 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 (the "Loan Agreement
II, Loan Agreement I and Loan Agreement II both referred to as the "Loan
Agreements"); and
WHEREAS, the Pledgors have concluded a share pledge agreement (the "Share Pledge
Agreement") on January 7, 1998 in favour of the Pledgee to secure the prompt and
complete satisfaction of any and all Secured Liabilities as defined in the Share
Pledge Agreement, and
WHEREAS, the Pledgors shall extend the security purpose of the Share Pledge
Agreement in order to also secure the Borrower's payment obligations under the
Loan Agreement II.
NOW THEREFORE,
FiberMark Beteiligungs GmbH, FiberMark GmbH and Bayerische Hypo- and Vereinsbank
AG agree as follows:
ART. 1
AMENDMENT
1.1 The Pledgors and the Pledgee herewith confirm that by operation of law
the pledge of the shares in Steinbeis Xxxxxxx GmbH under the Share
Pledge Agreement continues in the shares of Fibermark Xxxxxxx GmbH &
Co. following the transformation of the former Steinbeis Xxxxxxx GmbH
into Fibermark Xxxxxxx GmbH & Co.
1.2 The security purpose of the Share Pledge Agreement shall be modified by
extending the meaning of Secured Liabilities as defined in the Share
Pledge Agreement as follows:
"Secured Liabilities" means all present and future obligations and
liabilities (whether actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever) which are now or have
been or at any time after the date hereof may be or become by way of
novation or otherwise due, owing or incurred by the Borrower to the
Pledgee under the Loan Agreements.
All other terms and conditions of the Share Pledge Agreement shall
remain unchanged.
ARTICLE 2
NOTICES, LANGUAGE
2.1 Any correspondence, documentation and communication between the parties
to this Agreement shall be in writing, by mail, or by telefax; the
latter case requiring confirmation by mail.
2.2 Without prejudice to any future change of address, all correspondence
from the Pledgors to the Pledgee shall be sent to the Pledgee at the
following address:
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
Xx Xxxxxxxxxx 0/XXX 0
00000 Xxxxxxx
Attention: Xx. Xxxxxx Xxxxxxxxxxxx
Fax: x00-00-00000000
All correspondence from the Pledgee to the Pledgors shall be sent to
the following address:
FiberMark Beteiligungs GmbH
x/x XxxxxXxxx Xxxxxxx XxxX & Xx.
Xxxxxxxxx: Xx. Xxxxxx Xxxxxxx
Fax: x00-0000-000000
(with copy to Mr. Xxxxx Xxxxx, Fax: x000-000-0000000)
FiberMark GmbH
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)
2.3 LANGUAGE
This Agreement is made in the English language. For the avoidance of
doubt, the English language version of this Agreement shall prevail
over any translation of this Agreement. However, where a German
translation of a word or phrase appears in the text of this Agreement,
the German translation of such word or Phrase shall prevail.
Any notice given under or in connection with this Agreement shall be in
the English language.
ART. 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.
The Parties hereby agree to replace, to the extent possible, any
provision of this Agreement which is or becomes illegal or invalid with
a legal and valid provision which achieves to the fullest extent
possible the commercial intention of the Parties.
ART. 4
MISCELLANEOUS
4.1 AMENDMENTS
Any alteration or amendment to this Agreement shall be in writing.
Verbal agreements shall have no legal effect.
4.2 GOVERNING LAW
The form and contents of this Agreement, as well as the rights and
obligations of the Pledgor and the Pledgee shall be construed according
to the laws of the Federal Republic of Germany in every respect.
4.3 JURISDICTION
The applicable place of jurisdiction for all disputes arising out of or
in connection with this Agreement shall be Munich. The Pledgee may
however, at its option, commence proceedings before any other competent
court of law in the Federal Republic of Germany and/or in any other
country in which assets of the Pledgors are situated. In the latter
case the laws of the Federal Republic of Germany shall, pursuant to
Art. 4.2, also be applicable.
4.4 COUNTERPARTS
This Agreement has been executed in the English language in 3 (three)
counterparts. One copy shall be provided to each of the Pledgors and to
the Pledgee. Each executed copy shall have the effect of an original.
SEPTEMBER 15, 1999
FiberMark Beteiligungs GmbH
..........................................
FiberMark GmbH
..........................................
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
..........................................
(in its capacity as Pledgee)
