Extension, Amendment and Confirmation Letter
Exhibit 10.1
Extension, Amendment and Confirmation Letter
| To: | Zellstoff- und Papierfabrik Rosenthal GmbH Hauptstraße 16 07366 Blankenstein Germany (the “Borrower” or “ZPR”)
| |
| D&Z Holding GmbH Hauptstraße 16 07366 Blankenstein Germany (the “Parent”)
D&Z Beteiligungs GmbH Hauptstraße 16 07366 Blankenstein Germany (“D&Z Beteiligung”)
ZPR Logistik GmbH Hauptstraße 16 07366 Blankenstein Germany (“ZPR Logistik”)
Mercer International Inc. Suite 1120, 700 W.Pender Street Vancouver, BC V6C 1G8 Canada (the “Ultimate Parent”) |
Munich, 04 October 2012
Dear Sirs
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Extension, Amendment and Confirmation Letter in relation to the Revolving Credit Facility Agreement in the amount of EUR 25,000,000 dated 19 August 2009 (the “Facility Agreement”) and the Shareholders’ Undertaking Agreement dated 19 August 2009 (the “Shareholders Undertaking Agreement”)
| 1. | INTRODUCTION |
| (a) | We (in our capacity as Facility Agent and/or, where the context so requires, as Security Agent) refer to the Facility Agreement. |
| (b) | We further refer to clause 9.1 of the Facility Agreement which provides that the Borrower shall repay all Loans in full on the Termination Date currently defined as 31 December 2012. |
| (c) | The extension, amendments and confirmation set out herein shall take effect upon (1) receipt by the Facility Agent of a copy of this letter duly countersigned by each of the Borrower, the Ultimate Parent, the Parent, D&Z Beteiligung and ZPR Logistik and (2) satisfaction of the conditions set out in clause 6 and such date shall be the “Effective Date”. The Facility Agent shall confirm the Effective Date to the Borrower promptly upon its occurrence. |
| 2. | DEFINITIONS |
Words and phrases given a meaning in the Facility Agreement, unless otherwise defined herein, have the same meaning when used in this letter.
| 3. | EXTENSION |
Subject to the other provisions of this letter, we (as Agent acting on the instructions of all the Lenders) propose that the definition of “Termination Date” set out in the Facility Agreement shall be amended to read as follows:
“Termination Date” means 31 October 2016.
| 4. | AMENDMENTS |
Subject to the other provisions of this letter, we (as Agent acting on instructions of Lenders constituting at least the Majority Lenders) propose that:
| A) | Paragraph (B) of the Introduction of the Facility Agreement shall be amended to read as follows: |
“ZPR operates an ISO 9001 (quality management), ISO 14001 (environmental management) and ISO 50001 (energy management) certified pulp mill for the production of northern bleached softwood kraft pulp located in Blankenstein, Thüringen, Federal Republic of Germany which has been financed through certain credit facilities.”
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| B) | The definition “Rollover Utilisation” of Clause 1.1 of the Facility Agreement shall be amended to read as follows: |
“Rollover Utilisation” means one or more Utilisations:
| (a) | made or to be made on the same day that (i) a maturing Loan is due to be repaid or (ii) the Borrower is obliged to pay to the Agent for the Issuing Bank the amount of any claim under a Bank Guarantee; |
| (b) | the aggregate amount of which is equal to or less than (i) the maturing Loan or (ii) the amount of the claim under the Bank Guarantee; |
| (c) | in the same currency as (i) the maturing Loan or (ii) the claim under the Bank Guarantee; and |
| (d) | made or to be made to the Borrower for the purpose of (i) refinancing a maturing Loan or (ii) satisfying the obligations of the Borrower to pay the amount of a claim under the Bank Guarantee to the Agent for the Issuing Bank;” |
| C) | Clause 14.1.1 of the Facility Agreement shall be amended to read as follows: |
“The Borrower shall pay to the Agent (for the account of each Lender) a fee computed at the rate of 0.90 per cent per annum on that Lender’s Available Commitment for the Availability Period.”
| D) | Clause 24.18.1 of the Facility Agreement shall be amended to read as follows: |
“No Obligor shall (and the Parent will procure that no members of the ZPR Group will) without the prior written consent of the Agent utilize the Facility in an amount exceeding EUR 10,000,000 to acquire any assets (separately or in a series of related acquisitions).”
| 5. | CONFIRMATION OF GUARANTEE, SECURITY RIGHTS AND SHAREHOLDERS’ UNDERTAKING AGREEMENT |
| (a) | The Borrower confirms for the benefit of the Finance Parties that each Security Document shall remain in full force and effect notwithstanding the extension of and amendments to, the Facility Agreement and that each Security Document shall secure the obligations assumed by the Borrower under the Finance Documents, including the Facility Agreement (as amended). |
| (b) | Each Guarantor confirms for the benefit of the Finance Parties that all of its obligations under clause 20 of the Facility Agreement (Guarantee—selbstschuldnerische Bürgschaft) shall remain in full force and effect notwithstanding the extension of and amendments to, the Facility Agreement and that its obligations extend to all obligations assumed by the Borrower under the Finance Documents, including the Facility Agreement (as amended). |
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| (c) | The Ultimate Parent, the Parent, ZPR, D&Z Beteiligung and ZPR Logistik as Subordinated Creditors each confirms for the benefit of the Finance Parties that its undertakings and obligations in the Shareholders’ Undertaking Agreement shall remain in full force and effect and continue to apply notwithstanding the extension of and amendments to, the Facility Agreement. |
| 6. | EFFECTIVENESS |
The extension and amendments proposed in this letter shall be subject to the fulfilment of the following conditions in form and substance satisfactory to the Agent:
| (a) | A copy of the constitutional documents of each Original Obligor in the form required by the Agent, including in relation to a German Obligor, an up-to-date officially certified commercial register extract (beglaubigter Handelsregisterauszug) and the articles of association (Satzung). |
| (b) | A copy of a resolution of the shareholders, or in the case of the Ultimate Parent a resolution of the directors, of each Original Obligor: |
| (i) | approving the terms of, and the transactions contemplated by, this letter and resolving that it countersigns this letter; |
| (ii) | authorising a specified person or persons to countersign this letter; and |
| (iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this letter. |
| (c) | A legal opinion from Sangra Moller in respect of the Ultimate Parent covering: |
| (i) | its due incorporation, its valid existence, its ability to be sued in its own name and the power to own its assets and carry on the business as it is being conducted; |
| (ii) | the due capacity of (including the power to enter into, perform and take all necessary action to authorise its entry into and performance of, this Extension, Amendment and Confirmation Letter, the extension of the Shareholder Loan Agreement and the transactions contemplated hereby) and the due execution by the Ultimate Parent in relation to each of this Extension, Amendment and Confirmation Letter, the extension of the Shareholder Loan Agreement to which it is a party and the transactions contemplated hereby; |
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| (iii) | the choice of the laws of the Federal Republic of Germany to govern this Extension, Amendment and Confirmation Letter and the Shareholder Loan Agreement to which it is a party being upheld by the relevant state and federal courts, and |
| (iv) | recognition and acceptance of final and conclusive judgment against it from any court in the Federal Republic of German by the relevant state and federal courts without re-trial or examination of the merits of the case; |
| (d) | Evidence that each of the Shareholder Loan Agreements has been extended for a term until 30 November 2016 or any later date. |
| (e) | A copy of any other Authorisation or other document, opinion or assurance which the Agent reasonably considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by this letter or for the validity and enforceability hereof. |
| (f) | Evidence that the fees, costs and expenses due from the Borrower have been paid or will be paid in accordance with Clause 11 of this letter. |
| 7. | CONTINUING OBLIGATIONS |
| (a) | The extension and amendments proposed in this letter are strictly limited to the matters and upon the conditions set out herein and shall not be construed to be the granting of or a right to any waiver to any other matter. Nothing in this letter shall otherwise affect the rights of any Finance Party. |
| (b) | Save as expressly amended by this letter, the provisions of the Finance Documents remain in full force and effect. |
| 8. | REPRESENTATIONS |
Each Obligor makes the representations and warranties set out in clause 21 (Representations) of the Facility Agreement to each Finance Party on the date of its respective countersignature of this letter (by reference to the facts and circumstances then existing).
| 9. | FINANCE DOCUMENT |
This letter is, subject only to the Borrower’s countersignature hereof, hereby designated a Finance Document.
| 10. | EXTENSION FEE |
The Borrower shall pay to the Arranger a fee of 1.25 per cent of the Total Commitments, payable on the day falling 10 days after the Effective Date.
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| 11. | COST AND EXPENSES |
The Borrower shall within five Business Days of demand by the Agent pay to each Finance Party the amount of all costs and expenses (including without limitation all taxes (including stamp tax), fees or other charges and all fees and expenses of (i) any external advisers and (ii) that Finance Party) reasonably incurred by any of them in connection with the negotiation, preparation, printing, delivery, perfection and execution of this letter.
| 12. | MISCELLANEOUS |
| (a) | Please indicate your acceptance of the provisions hereof by countersigning a copy of this letter and returning it to Ruth Schneider at UniCredit Bank AG, Arabellastr. 14, 81925 Munich, Germany before close of business in Munich on 31October 2012. The offers set out in this letter shall terminate on that date. |
| (b) | Changes and amendment to this letter shall be made in writing. This also applies to this paragraph 12 (b). |
| (c) | Nothing in this letter shall be deemed as releasing the Borrower from any of its obligations under the Finance Documents, which shall apply at all times. |
| (d) | This letter may be executed in any number of counterparts and this shall have the same effect as if the signature on the counterparts were on a single copy of this letter. |
| (e) | Service of process |
| (i) | Without prejudice to any other mode of service allowed under any relevant law, the Ultimate Parent irrevocably appoints the Borrower as its agent for service of process in relation to any proceedings before the courts of Frankfurt/Main, Federal Republic of Germany in connection with this letter and agrees that failure by the process agent to notify it of the process will not invalidate the proceedings concerned. |
| (ii) | If any person appointed as process agent is unable for any reason to act as agent for service of process the Borrower (on behalf of the Ultimate Parent) must immediately (and in any event within 30 days of such event taking place) appoint another agent on terms acceptable to the Security Agent. Failing this, the Security Agent may appoint another agent for this purpose. |
| (f) | The provisions of Clause 42 (Jurisdiction) of the Facility Agreement shall be incorporated into this letter as if set out in full in this letter and if references therein to “this Agreement” are references to this letter. |
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| (g) | This letter and any non-contractual obligations arising out of or in connection with it are governed by German law. |
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| Yours faithfully |
| /s/ Simon Tutt /s/ Ruth Schneider |
| For and on behalf of |
UniCredit Bank AG
in its capacity as Arranger, Agent and Security Agent, Original Lender and Issuing Bank
| For and on behalf of | ||||||
| Zellstoff- und Papierfabrik Rosenthal GmbH | ||||||
| Blankenstein, October 8, 2012 | /s/ Leonhard Nossol | |||||
| For and on behalf of D&Z Holding GmbH | ||||||
| Blankenstein, October 8, 2012 | /s/ Leonhard Nossol | |||||
| For and on behalf of D&Z Beteiligungs GmbH | ||||||
| Blankenstein, October 8, 2012 | /s/ Leonhard Nossol | |||||
| For and on behalf of ZPR Logistik GmbH | ||||||
| Blankenstein, October 8, 2012 | /s/ Leonhard Nossol | |||||
| For and on behalf of Mercer International Inc. | ||||||
| Vancouver, October 16, 2012 | /s/ David M. Gandossi | |||||
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