EX-10 2 merc-ex10_1.htm EX-10.1 EX-10

 

EXHIBIT 10.1

 

Execution Version

 

 

 

 

 

AMENDMENT AND RESTATEMENT AGREEMENT

 

dated 22 March 2023

 

between

MERCER ROSENTHAL GMBH

MERCER TIMBER PRODUCTS GMBH

MERCER STENDAL GMBH

MERCER HOLZ GMBH

MERCER EUROPE GMBH

MERCER STENDAL LOGISTIK GMBH

MERCER TIMBER PRODUCTS STENDAL GMBH

MERCER TORGAU GMBH & CO. KG

as Borrowers

 

UNICREDIT BANK AG
as Agent

 

and

OTHERS

 

relating to the

revolving facility agreement dated 15 September 2022

 

 

 

 

 

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Execution Version

 

THIS AMENDMENT AND RESTATEMENT AGREEMENT (the “Agreement”) is made on 22 March 2023

BETWEEN:

(1)
mercer rosenthal gmbh, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Rosenthal am Rennsteig, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 210443 ("MR");
(2)
Mercer Timber Products GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Am Bahnhof 123, 07929 Saalburg-Ebersdorf, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 513236 ("MTP");
(3)
mercer Stendal GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Goldbecker Strasse 1, 39596 Arneburg, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Stendal with registration number HRB 2446 ("MS");
(4)
Mercer Holz GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Rosenthal am Rennsteig, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 514025 ("MH");
(5)
Mercer europe GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Rosenthal am Rennsteig, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 520221 ("ME");
(6)
Mercer Stendal logistik GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Goldbecker Strasse 38, 39596 Arneburg, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Stendal with registration number HRB 4088 ("ML");
(7)
MERCER Timber Products Stendal GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Goldbecker Straße 1, 39596 Arneburg, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Stendal with registration number HRB 28026 ("MTPS")
(8)
MERCER TORGAU GMBH & CO. KG, a limited partnership (Kommanditgesellschaft) constituted under the laws of the Federal Republic of

 

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Execution Version

 

Germany having its business address at Forstweg 1, 04860 Torgau, Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Leipzig with registration number HRA 15241, represented by Mercer Torgau Beteiligungs GmbH as general partner ("MT") (MT, ML, MR, MTP, MS, MH, ME and MTPS are together referred to as the "Borrowers" and each a "Borrower");
(9)
THE ENTITES listed in Part I of Schedule 1 (Guarantors) as guarantors (the "Guarantors");
(10)
UNICREDIT BANK AG, COMMERZBANK AG, BERLIN BRANCH and LANDESBANK BADEN-WÜRTTEMBERG as mandated lead arrangers (the "Arranger");
(11)
UNICREDIT BANK AG as coordinator and bookrunner (the "Coordinator");
(12)
THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (Lenders) as lenders (the "Lenders");
(13)
UNICREDIT BANK AG as agent of the other Finance Parties (the "Agent"); and
(14)
UNICREDIT BANK AG as sustainability coordinator (the "Sustainability Coordinator").

(each a "Party" and together the "Parties").

 

WHEREAS:

(A)
The Parties are parties to a EUR 300,000,000 revolving credit facility agreement dated 15 September 2022 and entered into between UniCredit Bank AG, Commerzbank AG, Berlin Branch and Landesbank Baden-Württemberg as mandated lead arrangers, UniCredit Bank AG as coordinator, bookrunner, agent and sustainability coordinator, the Lenders as lenders and Mercer Rosenthal GmbH (previously known as Zellstoff- und Papierfabrik Rosenthal GmbH), Mercer Timber Products Stendal GmbH, Mercer Stendal GmbH (previously known as Zellstoff Stendal GmbH), Mercer Holz GmbH, Mercer Europe GmbH (previously known as Stendal Pulp Holding GmbH) Mercer Stendal Logistik GmbH (previously known as Zellstoff Stendal Transport GmbH), Mercer Timber Products GmbH, Mercer Torgau GmbH & Co. KG, Mercer Torgau Holding GmbH and Mercer Torgau Beteiligungs GmbH as obligors (the "Existing Facility Agreement").
(B)
The Parties have agreed to amend and restate the Existing Facility Agreement in accordance with the terms of this Agreement, to reflect certain name changes of the Obligors (as defined below) (including changes to the Target Group Companies) and to increase the basket amount for Ancillary Facilities in clause 2.1(b) of the Existing Facility Agreement.

 

NOW, IT IS AGREED as follows:

1.
Definitions and interpretation
1.1
In this Agreement:
"Existing Facility Agreement" has the meaning given to it in recital (A).

 

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Execution Version

 

"Obligors" means the Borrowers and the Guarantors.
"Restated Facility Agreement" means the Existing Facility Agreement as amended and restated pursuant to this Agreement in the form set out in Schedule 4 (Restated Facility Agreement).
"Restatement Date" means the date on which the Agent has received (or has waived receipt of) all documents and/or evidence set out in Schedule 2 (Conditions Precedent to Restatement Date) in each case in form and substance satisfactory to the Agent.
1.2
Except where this Agreement expressly states otherwise, each term used in this Agreement which is defined in the Existing Facility Agreement has the same meaning as in the Existing Facility Agreement and shall be construed in accordance with the Existing Facility Agreement.
1.3
The rules of construction in the Existing Facility Agreement shall apply to this Agreement as if set out in this Agreement save that references in the Existing Facility Agreement to "this Agreement" shall be construed as references to this Agreement.
1.4
Unless the context otherwise requires, references in the Existing Facility Agreement to "this Agreement" shall be to the Restated Facility Agreement.
1.5
In this Agreement:
(a)
any reference to a "Clause" or "Schedule" is, unless the context otherwise requires, a reference to a clause or schedule of this Agreement; and
(b)
clause and schedule headings are for ease of reference only.
1.6
The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.7
This Agreement is hereby designated as a Finance Document.
2.
AMENDMENT AND Restatement of the Existing FAcility Agreement

The Parties agree that, with effect on and from the Restatement Date, the Existing Facility Agreement shall be amended and restated by this Agreement so that it shall be in effect in the form, and read and construed for all purposes, as set out in Schedule 4 (Restated Facility Agreement) and so that the rights and obligations of the parties to the Existing Facility Agreement and the Restated Facility Agreement shall, on and from that date, be governed by and construed in accordance with the provisions of the Restated Facility Agreement. The Agent shall notify the Obligors’ Agent in writing without undue delay of the occurrence of the Restatement Date.

3.
Representations and warranties

The representations and warranties set out in clause 20 (Representations) of the Existing Facility Agreement are made by each Obligor on the date of this Agreement and are made (in the form set out in clause 20 (Representations) of the Restated Facility Agreement) by each Obligor on the Restatement Date, in each case by reference to the facts and circumstances existing at the date the representation or warranty is made or deemed to be made.

 

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Execution Version

 

4.
Continuity and further assurance
4.1
Without prejudice to the rights of the Finance Parties which have arisen on or before the Restatement Date, each Obligor confirms that, on and after the Restatement Date, the provisions of the Restated Facility Agreement and other Finance Documents shall continue in full force and effect and any reference in the Finance Documents to the Existing Facility Agreement or to any provision of the Existing Facility Agreement will be construed as a reference to the Restated Facility Agreement, or that provision, as amended and restated by this Agreement.
4.2
Other than as expressly set out and agreed hereby, this Agreement does not constitute a waiver or amendment of any other term or condition of the Existing Facility Agreement. The Agent reserves any and all contractual and legal rights it has under the Existing Facility Agreement and the Amended and Restated Facility Agreement (as the case may be) and the applicable law.
4.3
The Obligors shall, at the request of the Agent and at their own expense, do all such acts and things as reasonably necessary or desirable to give effect to the provisions of this Agreement.
5.
Governing law and jurisdiction
5.1
Governing Law

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by German law.

5.2
Jurisdiction
(a)
The courts of Munich, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
(b)
The Parties agree that the courts of Munich, Germany, are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
(c)
This Clause 6.2 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
6.
Conclusion of this Agreement (Vertragsschluss)
6.1
The Parties to this Agreement may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by any means of telecommunication (telekommunikative Übermittlung) such as by way of electronic photocopy.
6.2
If the Parties to this Agreement choose to conclude this Agreement pursuant to paragraph (a) above, they will transmit the signed signature page(s) of this Agreement to Dentons Europe LLP, attention to Axel Schlieter (axel.schlieter@dentons.com) or

 

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Execution Version

 

Julia Heitmann (julia.heitmann@dentons.com) (each a "Recipient"). The Agreement will be considered concluded once one Recipient has actually received the signed signature page(s) (Zugang der Unterschriftsseite(n)) from all Parties to this Agreement (whether by way of electronic photocopy or other means of telecommunication) and at the time of the receipt of the last outstanding signature page(s) by such one Recipient.
6.3
For the purposes of this Clause 42 only, the Parties to this Agreement appoint each Recipient as their attorney (Empfangsvertreter) and expressly allow (gestatten) each Recipient to collect the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of doubt, each Recipient will have no further duties connected with its position as Recipient. In particular, each Recipient may assume the conformity to the authentic original(s) of the signature page(s) transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the signing authority of the signatories.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

 

 

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Execution Version

 

Schedule 1

(Parties)

Part I
(Guarantors)

Name of Guarantor

Local court (Amtsgericht) / Registration number (or equivalent, if any)

Mercer Rosenthal GmbH

Jena / HRB 210443

Mercer Timber Products GmbH

Jena / HRB 513236

Mercer Stendal GmbH

Stendal / HRB 2446

Mercer Holz GmbH

Jena / HRB 514025

Mercer Europe GmbH

Jena / HRB 520221

Mercer Stendal Logistik GmbH

Stendal / HRB 4088

Mercer Pulp Sales GmbH

Berlin (Charlottenburg) /
HRB 102317

Mercer Timber Products Stendal GmbH

Stendal / HRB 28026

Mercer Torgau GmbH & Co. KG

Leipzig / HRA 15241

Mercer Torgau Holding GmbH

Leipzig / HRB 37993

Mercer Torgau Beteiligungs GmbH

Leipzig / HRB 34381

 

Part II
(Lenders)

 

Name of Lender

Barclays Bank Ireland PLC

Commerzbank AG, Berlin Branch

Credit Suisse (Deutschland) Aktiengesellschaft

Landesbank Baden-Württemberg

Royal Bank of Canada

UniCredit Bank AG

 

 

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Execution Version

 

Schedule 2

Conditions precedent to Restatement Date

 

1.
In relation to each Obligor an up-to-date electronic copy of a commercial register extract (Handelsregisterausdruck).
2.
This Agreement duly executed by all the Parties.
3.
Evidence that fees costs and expenses then due have been paid.
4.
Such other documents and other evidence as the Agent may require prior to the Restatement Date.

 

 

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Execution Version

 

Schedule 3

Restated Facility Agreement

 

 

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Execution Version

 

eur 300,000,000

REVOLVING FACILITY AGREEMENT

for

mercer rosenthal gmbh
Mercer Timber Products GmbH
Mercer Stendal GmbH
Mercer Holz GmbH
Mercer EUROPe GmbH
Mercer Stendal logistik GmbH
MERCER Timber Products Stendal GmbH
as Borrowers

 

arranged by

UNICREDIT BANK AG
COMMERZBANK AG, Berlin BRANCH
Landesbank Baden-Württemberg
as Mandated Lead Arrangers

and

UNICREDIT BANK AG
acting as coordinator and bookrunner

and

UNICREDIT BANK AG
acting as Agent

and

UNICREDIT BANK AG
acting as sustainability coordinator

and

Others

 

REVOLVING FACILITY AGREEMENT

 

 

 

 

Germany 13570993.4


 

Contents

Clause

Page

 

1.

Definitions and Interpretation

5

2.

The Facility

31

3.

Accordion Increase

34

4.

Purpose

37

5.

Conditions of Utilisation

37

6.

Utilisation

38

7.

Ancillary Facilities

39

8.

Repayment

44

9.

Prepayment and Cancellation

46

10.

Interest

49

11.

Interest Periods

53

12.

Changes to the Calculation of Interest

53

13.

Fees

54

14.

Tax Gross Up and Indemnities

55

15.

Increased Costs

60

16.

Other Indemnities

62

17.

Mitigation by the Lenders

63

18.

Costs and Expenses

63

19.

Guarantee and Indemnity

64

20.

Representations

71

21.

Information Undertakings

76

22.

Financial Covenants

81

23.

General Undertakings

83

24.

Conditions Subsequent

90

25.

Events of Default

90

26.

Changes to the Lenders

96

27.

Changes to the Obligors

102

28.

Role of the Agent, the Arranger and the Coordinator

105

29.

Conduct of Business by the Finance Parties

115

30.

Sharing among the Finance Parties

115

31.

Payment Mechanics

118

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32.

Set-Off

121

33.

Notices

121

34.

Calculations and Certificates

123

35.

Partial Invalidity

124

36.

Remedies and Waivers

124

37.

Amendments and Waivers

124

38.

Confidential Information

130

39.

Confidentiality of Funding Rates

134

40.

Governing Law

136

41.

Enforcement

136

42.

Conclusion of this Agreement (Vertragsschluss)

136

Schedule 1 The Original Parties

138

Part I The Original Obligors

138

Part II The Original Lenders

138

Schedule 2 Conditions Precedent

140

Part I Conditions Precedent to Initial Utilisation

140

Part II Conditions Precedent required to be delivered by an Additional Obligor

142

Schedule 3 Utilisation Request

144

Schedule 4 Form of Transfer Certificate

145

Schedule 5 Form of Accession Letter

147

Schedule 6 Form of Resignation Letter

148

Schedule 7 Form of Compliance Certificate

149

Schedule 8 Existing Letters of Credit

150

Schedule 9 Existing Security

151

Schedule 10 Existing Indebtedness

152

Schedule 11 LMA Form of Confidentiality Undertaking

153

Schedule 12 Timetables

158

Schedule 13 Form of Increase Confirmation

159

Schedule 14 Increase Certificate and Increase Accession Agreement

161

Part I Form of Increase Certificate

161

Part II Form of Increase Accession Agreement

162

Schedule 15 Form of Sustainability KPI Compliance Certificate

164

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THIS AGREEMENT (the "Agreement") is originally dated 15 September 2022, as amended and restated pursuant to an amendment and restatement agreement dated March 2023 and made between:

(1)
mercer rosenthal gmbh, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Rosenthal am Rennsteig, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 210443 ("MR");
(2)
Mercer Timber Products GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Am Bahnhof 123, 07929 Saalburg-Ebersdorf, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 513236 ("MTP");
(3)
mercer Stendal GmbH, a limited liability company (Gesellschaft mit beschränkterHaftung) incorporated under the laws of the Federal Republic of Germany having its business address at Goldbecker Strasse 1, 39596 Arneburg, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Stendal with registration number HRB 2446 ("MS");
(4)
Mercer Holz GmbH, a limited liability company (Gesellschaft mit beschränkterHaftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Rosenthal am Rennsteig, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 514025 ("MH");
(5)
Mercer europe GmbH, a limited liability company (Gesellschaft mit beschränkterHaftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Rosenthal am Rennsteig, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 520221 ("ME");
(6)
Mercer Stendal logistik GmbH, a limited liability company (Gesellschaft mitbeschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Goldbecker Strasse 38, 39596 Arneburg, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Stendal with registration number HRB 4088 ("ML");
(7)
MERCER Timber Products Stendal GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Goldbecker Straße 1, 39596 Arneburg, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Stendal with registration number HRB 28026 ("MTPS") (ML, MR, MTP, MS, MH, ME and MTPS are together referred to as the "Original Borrowers" and each an "Original Borrower");

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(8)
THE ENTITES listed in Part I of Schedule 1 (The Original Parties) as original guarantors(the "Original Guarantors");
(9)
UNICREDIT BANK AG, Commerzbank AG, Berlin branch and Landesbank Baden-Württemberg as mandated lead arrangers (the "Arranger");
(10)
UNICREDIT BANK AG as coordinator and bookrunner (the "Coordinator");
(11)
THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the "Original Lenders");
(12)
UNICREDIT BANK AG as agent of the other Finance Parties (the "Agent"); and
(13)
UNICREDIT BANK AG as sustainability coordinator (the "Sustainability Coordinator").

IT IS AGREED as follows:

SECTION 1
INTERPRETATION

1.
Definitions and Interpretation
1.1.
Definitions

In this Agreement:

"Acceding Increase Lender" has the meaning given to it in Clause 3 (Accordion Increase).

"Accession Letter" means a document substantially in the form set out in Schedule 5 (Form of Accession Letter).

"Additional Borrower" means a company which becomes an Additional Borrower in accordance with Clause 27.2 (Additional Borrowers).

"Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 27.4 (Additional Guarantors).

"Additional Obligor" means an Additional Borrower or an Additional Guarantor.

"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

"Ancillary Commencement Date" means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period.

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"Ancillary Commitment" means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 7 (Ancillary Facilities), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.

"Ancillary Document" means each document relating to or evidencing the terms of an Ancillary Facility.

"Ancillary Facility" means any ancillary facility made available by an Ancillary Lender in accordance with Clause ‎7 (Ancillary Facilities).

"Ancillary Lender" means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 (Ancillary Facilities).

"Ancillary Outstandings" means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) of the following amounts outstanding under that Ancillary Facility:

(a)
the principal amount under each overdraft facility and on demand short term loan facility (net of any Available Credit Balance);
(b)
the face amount of each guarantee, bond and letter of credit under that AncillaryFacility; and
(c)
the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,

in each case as determined by such Ancillary Lender in accordance with the relevant Ancillary Document or normal banking practice.

"Anti-Money Laundering" means any applicable laws or regulations in any jurisdiction in which an Obligor is located or doing business that relate to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.

"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

"Availability Period" means the period from and including the date of this Agreement to and including the date falling one (1) month before the Termination Date.

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"Available Commitment" means a Lender's Commitment minus (subject as set out below):

(a)
the amount of its participation in any outstanding Loans and the amount of the aggregate of its Ancillary Commitments; and
(b)
in relation to any proposed Utilisation, the amount of its participation in any other Loans that are due to be made on or before the proposed Utilisation Date, and the amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date.

For the purposes of calculating a Lender's Available Commitment in relation to any proposed Utilisation the following amounts shall not be deducted from that Lender's Commitment:

(i)
that Lender's participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date; and
(ii)
that Lender's Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.

"Available Credit Balance" means in relation to an Ancillary Facility, credit balances on any account of any Borrower of that Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility.

"Available Facility" means the aggregate for the time being of each Lender's Available Commitment.

"Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 27 (Changes to the Obligors).

"Break Costs" means the amount (if any) by which:

(a)
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

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"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Munich and London and which is a TARGET Day.

"Code" means the US Internal Revenue Code of 1986.

"Change of Control" means if:

(a)
the Ultimate Parent ceases to Control the Obligors; or
(b)
any other person or group of persons acting in concert gains direct or indirect Control of the Ultimate Parent and the Obligors (or any of them),

and for the purposes of this definition, "acting in concert" means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition of shares or partnership interests in a person, either directly or indirectly, to obtain or consolidate Control of such person.

"Control" means the direct or indirect power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

(a)
cast, or control the casting of more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of such body corporate or another entity; or
(b)
appoint or remove all, or the majority, of the partners, directors, management board members, or other equivalent officers of such body corporate; and/or

the holding of more than 50 per cent. of the issued share capital of such body corporate or holding the post of managing partner of a limited partnership or legal partnership (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) and "Controlled" shall be construed accordingly.

"Commitment" means:

(a)
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part II of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or Clause 3 (Accordion Increase); and
(b)
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or Clause 3 (Accordion Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

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"Compliance Certificate" means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate).

"Confidential Information" means all information relating to the Borrowers, any Obligor, the Group, the Mercer Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

(a)
any member of the Group or the Mercer Group or any of its advisers; or
(b)
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or the Mercer Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(i)
information that:
(A)
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidential Information); or
(B)
is identified in writing at the time of delivery as non-confidential by any member of the Group or the Mercer Group or any of its advisers; or
(C)
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group or the Mercer Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
(ii)
any Funding Rate.

"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 11 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Borrowers and the Agent.

"Dangerous Substance" means any chemical, biological, industrial, toxic, contaminant, explosive, radioactive, hazardous or dangerous emissions, noise and any natural or artificial substance (in whatever form) including asbestos, oil, petroleum, warfare agents (Kampfstoffe) other waste and any genetically modified organism the generation, transportation, storage, treatment, use or disposal of which (whether alone or in

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combination with any other substance) gives rise to a risk of causing harm to man or any other living organism or damaging the Environment or public health or welfare at any site owned, leased, occupied or used by any member of the Group or requires remediation under Environmental Law, in each case including any controlled, special, hazardous, toxic, radioactive or dangerous waste.

"Default" means an Event of Default or any event or circumstance specified in Clause 25 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

"Defaulting Lender" means any Lender:

(a)
which has failed to make its participation in a Loan available (or has notified the Agent that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 6.4 (Lenders' participation);
(b)
which has otherwise rescinded or repudiated a Finance Document; or
(c)
with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

(i)
its failure to pay is caused by
(A)
administrative or technical error; or
(B)
a Disruption Event, and

payment is made within three (3) Business Days of its due date; or

(ii)
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

"Designated Gross Amount" means the amount notified by the relevant Borrower to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Gross Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.

"Designated Net Amount" means the amount notified by the relevant Borrower to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Net Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.

"Disruption Event" means either or both of:

(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments

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to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b)
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
(i)
from performing its payment obligations under the Finance Documents; or
(ii)
from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

"Distribution" has the meaning given to such term in the Shareholders' Undertaking Agreement.

"Eligible Institution" means any Lender or other bank, financial institution, trust, fund or other entity selected by the Borrowers and which, in each case, is not a member of the Mercer Group.

"Environment" means all, or any of, the following media: the air (including the air within buildings and the air within other natural or man-made structures above or below ground, such as soil-vapour), water (including ground and surface water, coastal or inland waters, aquifers, leachates, pipes, drains and sewers) and land (including buildings and other structures in, on or under it and any surface and sub-surface soil) and human health or safety, living organism and ecological systems.

"Environmental Claim" means any claim by any person:

(a)
in respect of any loss or liability suffered or incurred by that person as a result of or in connection with any violation of Environmental Law; or
(b)
that arises as a result of or in connection with Environmental Contamination and that could give rise to any remedy or penalty (whether interim or final) that may be enforced or assessed by private or public legal action or administrative order or proceedings.

"Environmental Contamination" means each of the following and their consequences:

(a)
any release, discharge, emission, leakage or spillage of any Dangerous Substance at or from any site owned, leased, occupied or used by any member of the Group into any part of the Environment; or

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(b)
any accident, fire, explosion or sudden event at any site owned, leased, occupied or used by any member of the Group which is directly or indirectly caused by or attributable to any Dangerous Substance; or
(c)
any other pollution of the Environment,

other than those in compliance with Environmental Law or any Environmental Permit, as the case may be.

"Environmental Law" means all regulations, agreements with the authorities and the like having legal effect in Germany concerning the protection of, or the prevention of damage to, human health, the Environment, the conditions of the work place or the generation, transportation, storage, treatment or disposal of Dangerous Substances or the regulation or control of Dangerous Substances or Environmental Contamination or the provision of remedies in relation to harm or damage to the Environment, plus the applicable World Bank Environmental Health and Safety Guidelines.

"Environmental Permits" means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned, leased, occupied or used by the relevant member of the Group.

"EURIBOR" means, in relation to any Loan:

(a)
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or
(b)
as otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.

"Event of Default" means any event or circumstance specified as such in Clause 25 (Events of Default).

"Existing Indebtedness" means any Financial Indebtedness of the Group set out in Schedule 10 (Existing Indebtedness).

"Existing Letters of Credit" means the letters of credit under the Existing Facility outstanding on the date of this Agreement and which are listed in Schedule 8 (Existing Letters of Credit).

"Existing Facility" means the EUR 200,000,000 revolving facility agreement dated 19 December 2018 between, inter alios, UniCredit Bank AG and Commerzbank AG, Luxembourg Branch as arrangers, UniCredit Bank AG as agent, Zellstoff- und Papierfabrik Rosenthal GmbH, Mercer Timber Products GmbH, Mercer Timber Products Stendal GmbH, Zellstoff Stendal GmbH, Mercer Holz GmbH, Stendal Pulp Holding GmbH and Zellstoff Stendal Transport GmbH as original borrowers and together with Mercer Pulp Sales GmbH as original guarantors and the financial institutions named therein as lenders.

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"Existing Increase Lender" has the meaning given to it in Clause 3 (Accordion Increase).

"Existing Security" means the Security of the Group set out in Schedule 9 (Existing Security).

"Facility" means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facility).

"Facility Office" means, in respect of a Lender, the office notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days' written notice) as the office through which it will perform its obligations under this Agreement.

"FATCA" means:

(a)
sections 1471 to 1474 of the Code or any associated regulations;
(b)
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c)
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

"FATCA Application Date" means:

(a)
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or
(b)
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

"Fee Letter" means:

(a)
any letter or letters dated on or about the date of this Agreement between the Arranger, Agent or Coordinator and each of the Original Borrowers setting out any of the fees referred to in Clause 13 (Fees); and

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(b)
any other agreement setting out fees referred to in Clause 13.5 (Interest, commission and fees on Ancillary Facilities).

"Finance Document" means this Agreement, the Shareholders' Undertaking Agreement, the Sustainability Target Statement, the Target Group Disclosure Statement, any Fee Letter, any Accession Letter, any Resignation Letter, any Ancillary Document and any other document designated as such by the Agent and any of the Borrowers.

"Finance Party" means the Agent, the Coordinator, the Sustainability Coordinator, any Arranger or a Lender.

"Financial Indebtedness" means (without any duplication) any indebtedness for or in respect of:

(a)
moneys borrowed;
(b)
any amount raised by acceptance under any acceptance credit facility;
(c)
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
(d)
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease);
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
(f)
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
(g)
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
(h)
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;
(i)
any amount raised by the issue of shares redeemable by the holder of such shares prior to the expiry of the Termination Date; and

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(j)
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.

"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (a) of Clause 12.3 (Cost of funds).

"GAAP" means generally accepted accounting principles in Germany.

"German Obligor" means any Obligor incorporated or established (as the case may be) in the Federal Republic of Germany.

"Gross Outstandings" means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft but calculated on the basis that the words "(net of any Available Credit Balance)" in paragraph (a) of the definition of "Ancillary Outstandings" were deleted.

"Group" means all entities of Mercer Germany collectively and "member of the Group" shall be construed accordingly.

"Guarantor" means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 27 (Changes to the Obligors).

"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.

"Increase Accession Agreement" means a document substantially in the form of Part II of Schedule 14 (Increase Certificate and Increase Accession Agreement).

"Increase Amount" has the meaning given to it in Clause 3 (Accordion Increase).

"Increase Certificate" means a document substantially in the form of Part I of Schedule 14 (Increase Certificate and Increase Accession Agreement).

"Increase Confirmation" means a confirmation substantially in the form set out in Schedule 13 (Form of Increase Confirmation).

"Increase Effective Date" means the date specified by the Obligors’ Agent to the Agent as being the date on which the proposed increase in the amount of the Commitment of an Increase Lender or the accession of an Acceding Increase Lender is to take effect.

"Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).

"Increase Request" has the meaning given to it in Clause 3 (Accordion Increase).

"Insolvency Event" in relation to a Finance Party means that the Finance Party:

(a)
is dissolved (other than pursuant to a consolidation, amalgamation or merger);

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(b)
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(c)
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
(d)
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
(e)
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
(i)
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
(ii)
is not dismissed, discharged, stayed or restrained in each case within thirty (30) calendar days of the institution or presentation thereof;
(f)
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(g)
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);
(h)
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within thirty (30) calendar days thereafter;
(i)
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or
(j)
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

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"Insurances" means any and all of the contracts of insurance and reinsurance that each Borrower is required to procure and maintain pursuant to the terms hereof.

"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.4 (Default interest and lump sum damages).

"Interpolated Screen Rate" means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

(a)
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
(b)
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time for that Loan.

"Joint Venture" means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership (limited or otherwise) or any other entity.

"KPI Score" means, in relation to each Sustainability KPI and the relevant financial year of the Ultimate Parent, the value of such Sustainability KPI as stated in the Sustainability KPI Compliance Certificate.

"KPI Target Score" means, in relation to each Sustainability KPI and the relevant financial year of the Ultimate Parent, the number agreed as such in the Sustainability Target Statement.

"Lender" means:

(a) any Original Lender; and

(b) any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender" in accordance with Clause 2.2 (Increase), Clause 3 (Accordion Increase) or Clause 26 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

"LMA" means the Loan Market Association.

"Loan" means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

"Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 60 per cent. (%) of the Total Commitments (or, if the Total Commitments have been

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reduced to zero, aggregated more than 60 per cent. (%) of the Total Commitments immediately prior to the reduction).

"Margin" means, subject to paragraph (b) below, 1.30 per cent. (%) per annum,

(a)
but if:
(i)
no Event of Default has occurred and is continuing;
(ii)
a period of at least 12 Months has expired since the date of this Agreement; and
(iii)
the Leverage Ratio set out in the most recent Compliance Certificate is within a range set out below,

then, subject to paragraph (b) below, the Margin for each Loan will be the percentage per annum set out below opposite that range:

Leverage Ratio

Margin % p.a.

Greater than or equal to 2.5:1

2.25

Less than 2.50:1 but greater than or equal to 1.50:1

1.75

Less than 1.50:1

1.30

 

However:

(A)
any increase or decrease in the Margin for a Loan shall take effect on the date (the "reset date") which is 5 Business Days after receipt by the Agent of the actual Compliance Certificate pursuant to Clause 21.2 (Compliance Certificate);
(B)
if, following receipt by the Agent of the Compliance Certificate related to the relevant financial statements, that Compliance Certificate does not confirm the basis for a reduced Margin, then paragraph (b) of Clause 10.3 (Payment of interest) shall apply and the Margin for that Loan shall be the percentage per annum determined using the table above and the revised ratio of Leverage Ratio;
(C)
while an Event of Default is continuing, the Margin for each Loan shall be the highest percentage per annum set out above; and

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(D)
for the purpose of determining the Margin, the Leverage Ratioshall be determined in accordance with Clause 22.1 (Financial definitions); and
(b)
if the Agent receives the SPA Closing Notice in accordance with Clause 21.4 (Information relating to SPA Acquisition and Target Group Disclosure Statement), the applicable Margin shall be increased by additional 0.10 per cent. (%) points per annum, which shall take effect on the date which is 5 Business Days after receipt by the Agent of the SPA Closing Notice.

"Material Adverse Effect" means an event, occurrence or condition which has a material adverse effect (as compared with the situation which would have prevailed but for such events, occurrence or condition) on:

(a) the business, operations, property and financial condition of the Group taken as a whole;

(b) the ability of any Borrower to perform any of its obligations under the Finance Documents; or

(c) the validity or enforceability of the Finance Documents.

"Mercer Group" means the Ultimate Parent and its Subsidiaries from time to time and "member of the Mercer Group" shall be construed accordingly.

"Mercer Germany" means collectively the Obligors and each Subsidiary organized under the laws of Germany of any Obligor, including (for the avoidance of doubt) any Target Group Company following its accession to this Agreement as Additional Obligor in accordance with Clause 24 (Conditions Subsequent).

"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a)
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
(b)
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
(c)
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period.

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"Multi-account Overdraft" means an Ancillary Facility which is an overdraft facility comprising more than one account.

"Net Outstandings" means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft.

"New Lender" has the meaning given to that term in Clause 26 (Changes to the Lenders).

"Obligor" means a Borrower or a Guarantor.

"Obligors' Agent" means each of MR and MS, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.4 (Obligors' Agent).

"Original Financial Statements" means:

(a)
in relation to the Ultimate Parent, the audited consolidated financial statements of the Mercer Group for the financial year ended 2021;
(b)
in relation to each Original Obligor, its audited financial statements for its financial year ended 2021;
(c)
in relation to Mercer Germany (combined upon auditor's verifiable review (prüferische Durchsicht) of consolidated debt, revenues and expenses), the financial statements for its financial year ended 2021; and
(d)
(in relation to each Additional Obligor the financial statements delivered as a condition precedent to its accession.

"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement or, in the case of an Additional Guarantor, as at the date on which that Additional Guarantor becomes Party as a Guarantor.

"Original Obligor" means an Original Borrower or an Original Guarantor.

"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

"Party" means a party to this Agreement.

"Permitted Encumbrances" means:

(a)
any lien arising by operation of law or in the ordinary course of trading;
(b)
any Security on the assets subject to a retention of title arising by operation of any retention of title agreement entered into in the ordinary course of trading;
(c)
any Security over assets in connection with lease agreements having an aggregate contract value of EUR 50,000,000 in respect of the Group (as a whole) at any time;

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(d)
any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:
(i)
the Security was not created in contemplation of the acquisition of that asset by a member of the Group;
(ii)
the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iii)
the Security is removed or discharged within 180 calendar days of the date of acquisition of such asset or in the case of the Target Group Factoring Agreement, on or before 30 September 2023;
(e)
any Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security is created prior to the date on which that company becomes a member of the Group, if:
(i)
the Security was not created in contemplation of the acquisition of that company;
(ii)
the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(iii)
the Security is removed or discharged within 180 calendar days of that company becoming a member of the Group;
(f)
any liens for taxes or arising as a result of litigation or legal proceedings that are being contested in good faith by appropriate proceedings;
(g)
any Security securing any Financial Indebtedness permitted in accordance with paragraph (d) of the definition of Permitted Indebtedness; and/or
(h)
other liens on assets that were not incurred in connection with Financial Indebtedness and that do not in the aggregate materially adversely affect the value of the said assets or materially impair their use in the ordinary course of business.

"Permitted Gross Outstandings" means, in relation to a Multi-account Overdraft, any amount, not exceeding its Designated Gross Amount, which is the amount of the Gross Outstandings of that Multi-account Overdraft.

"Permitted Indebtedness" means any:

(a)
Existing Indebtedness;
(b)
Until the date of first Utilisation, Financial Indebtedness under the Existing Facility;
(c)
Financial Indebtedness incurred under, or as expressly permitted by, the Transaction Documents;

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(d)
Financial Indebtedness incurred between any of the Obligors;
(e)
Financial Indebtedness incurred as Subordinated Debt by any Borrower, or if made available to any other Obligor than the Borrowers, to the extent on-lent or otherwise passed on to any Borrower, which is legally and structurally subordinated to any liabilities (including contingent liabilities) of the Borrowers and the relevant Obligor under the Finance Documents in accordance with the Shareholders' Undertaking Agreement;
(f)
Financial Indebtedness incurred by the Obligors (or any of them) in the ordinary course of business which does not exceed an aggregate amount in respect of the Obligors (calculated on a combined basis) of EUR 50,000,000 (or the equivalent in any other currency) at any time; and
(g)
any other Financial Indebtedness permitted by the Majority Lenders from time to time.

"Permitted Transaction" means:

(a)
transactions (other than the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of business (including with respect to affiliates on an arm's length basis); and
(b)
any other disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security given, or other transaction arising, under the Finance Documents or as permitted by the Majority Lenders.

"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two TARGET Days before the first day of that period, unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).

"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

"Relevant Jurisdiction" means the Original Jurisdiction of each Obligor and the jurisdiction of incorporation of each other member of the Group.

"Relevant Market" means the European interbank market.

"Repeating Representations" means each of the representations set out in Clause 20.1 (Status), Clause 20.2 (Binding obligations), Clause 20.3 (Non-conflict with other obligations), Clause 20.4 (Power and authority), Clause 20.5 (Authorisations), Clause 20.6 (Governing law and enforcement), Clause 20.10 (No default), Clause 20.11 (No misleading

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information), Clause 20.12 (Financial Statements), Clause 20.13 (Pari passu ranking), Clause 20.16 (Good title to assets), Clause 20.23 (Sanctions) and Clause 20.24 (Anti-bribery, anti-corruption and Anti-Money Laundering).

"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

"Resignation Letter" means a letter substantially in the form set out in Schedule 6 (Form of Resignation Letter).

"Rollover Loan" means one or more Loans:

(a)
made or to be made on the same day that (i) a maturing Loan is due to be repaid;
(b)
the aggregate amount of which is equal to or less than the amount of the maturing Loan; and
(c)
made or to be made to the same Borrower for the purpose of refinancing that maturing Loan.

"Sanctions" means any law, regulation, executive order, embargo, restrictive measure or other enabling legislation of any kind for trade, economic or financial sanctions, imposed, enacted, administered or enforced by a Sanctions Authority.

"Sanctions Authority" means each of the United Nations, the European Union, the Federal Republic of Germany, the United Kingdom, Switzerland or the United States of America.

"Sanctioned Country" means, while it is subject to any Sanctions, each of Russia, Luhansk (city of Ukraine), Donetsk (city of Ukraine), the Islamic Republic of Iran, the Democratic Peoples’ Republic of Korea (North Korea), the Republic of Cuba, the Syrian Arab Republic (Syria), the Republic of the Sudan (North Sudan), the Republic of South Sudan, the Crimea region of Ukraine (Crimea) or any country, region or territory that is, or whose government is, subject of country-wide, region-wide or territory-wide Sanctions broadly prohibiting dealings with such country, region, territory or government.

"Sanctions List" means each of the "Specially Designated Nationals and Blocked Persons List" maintained by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury; the "Denied Persons List" of the U.S. Department of Commerce or any similar list issued by any Sanctions Authority as amended in its current form.

"Sanctioned Person" means a person (i) located, domiciled, resident, organised under the laws of or incorporated in a Sanctioned Country, (ii) who is the government or owned or controlled by the government of a Sanctioned Country or by a party located, domiciled, resident, organised under the laws of or incorporated in a Sanctioned Country, (iii) subject to any Sanction or (iv) named on any Sanctions List.

"Screen Rate" means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for

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the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Obligors' Agent.

"Security" means a mortgage, charge, land charge (Grundschuld), pledge, lien, assignment, transfer for security purposes, extended retention of title arrangements (verlängerter Eigentumsvorbehalt) or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

"Separate Loan" has the meaning given to that term in Clause 8.1 (Repayment of Loans).

"Shareholder Distribution Account MPS" means the account named "Shareholder Distribution Account MPS" held by Mercer Pulp Sales GmbH with UniCredit Bank AG.

"Shareholder Distribution Account MTP" means the account named "Shareholder Distribution Account MTP" held by MTP with UniCredit Bank AG.

"Shareholder Distribution Accounts" means the Shareholder Distribution Account MPS, the Shareholder Distribution Account MTP, the Shareholder Distribution Account ME, the Shareholder Distribution Account MR and the Shareholder Distribution Account MS.

"Shareholder Distribution Account ME" means the account named "Shareholder Distribution Account ME" held by ME with UniCredit Bank AG.

"Shareholder Distribution Account MR" means the account named "Shareholder Distribution Account MR" held by MR with UniCredit Bank AG.

"Shareholder Distribution Account MS" means the account named "Shareholder Distribution Account MS" held by MS with UniCredit Bank AG.

"Shareholder Loan Agreements" means:

(a)
the SPA Acquisition Shareholder Loan; and
(b)
any shareholder loan agreement or similar document entered into from time to time between the Ultimate Parent as lender and an Obligor as borrower.

"Shareholders' Undertaking Agreement" means the shareholders' undertaking agreement originally dated 19 August 2009 and amended and restated on 12 April 2017 and on 19 December 2018 and further amended and restated by an amendment and restatement agreement dated on or about the date of this Agreement (and further amended and restated from time to time) entered into between, inter alios, the Agent, the Ultimate Parent and the Obligors.

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"SPA" means the sale and purchase agreement signed and notarized on 22 July 2022, among Wood Intermediate S.à r.l. as the seller, Mainsee 1434. V V GmbH as the purchaser and the Ultimate Parent as guarantor.

"SPA Acquisition" means the acquisition of Mercer Torgau Holding GmbH (previously known as Wood Holdco GmbH) and ancillary matters as contemplated in the SPA.

"SPA Acquisition Advance" means a one-time Loan under the Facility up to a maximum of EUR 100,000,000 to partially fund the SPA Closing.

"SPA Acquisition Shareholder Loan" means the shareholder loan agreement to be entered into between the Ultimate Parent as lender and ME as borrower in connection with the SPA Acquisition to finance additional funds required for the SPA Closing (including costs and expenses).

"SPA Closing" means the "Closing" pursuant to the terms of the SPA.

"SPA Closing Notice" has the meaning ascribed thereto in Clause 21.4 (Information relating to SPA Acquisition and Target Group Disclosure Statement).

"Specified Time" means a day or time determined in accordance with Schedule 12 (Timetables).

"Subordinated Debt" means any debt incurred by a member of the Group pursuant to a Shareholder Loan Agreement including interest and accrued interest.

"Subsidiary" means a subsidiary within the meaning of sections 15 - 17 Stock Corporation Act (Aktiengesetz).

"Sustainability Assurance Firm" means an independent accounting or other assurance firm as appointed by the Ultimate Parent from time to time who provides a statement of limited assurance in relation to the Sustainability KPI's.

"Sustainability KPI's" means the sustainability key performance indicators (KPI 1, KPI 2 and KPI 3) set out and depicted in the Sustainability Target Statement and "Sustainability KPI" means any of them.

"Sustainability KPI Compliance Certificate" means, with respect to the relevant financial year, an annual statement that includes the KPI Score achieved by the Ultimate Parent in relation to each of the Sustainability KPI's, signed by the Ultimate Parent and provided by the Borrowers or the Ultimate Parent to the Agent each year, substantially in the form set out in Schedule 15 (Form of Sustainability KPI Compliance Certificate).

"Sustainability Report" means a report of the Ultimate Parent for a financial year that is publicly available reporting on the Sustainability KPI's for the Ultimate Parent that includes a limited assurance report of the Sustainability Assurance Firm.

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"Sustainability Target Statement" means a sustainability target statement dated on or about the date of this Agreement setting out the Sustainability KPI's, including a defined ESG rating score and annual KPI Target Scores (as set out in the annex thereto) as agreed between the Ultimate Parent and the Sustainability Coordinator (acting on the instructions of the Majority Lenders) and as the same may be amended or restated from time to time.

"Target Group Borrower" means Mercer Torgau GmbH & Co. KG (previously known as HIT Holzindustrie Torgau GmbH & Co. KG).

"Target Group Companies" means, collectively, the Target Group Borrower, any Target Group Guarantor, and their respective Subsidiaries from time to time and "Target Group Company" means any of them.

"Target Group Disclosure Statement" means a disclosure statement dated on or about the date of this Agreement in respect of the Target Group Companies provided by the Borrowers to the Agent.

"Target Group Guarantors" means, collectively, Mercer Torgau Holding GmbH (previously known as Wood Holdco GmbH), Mercer Torgau Beteiligungs GmbH (previously known as Erste HIT Beteiligungsgesellschaft mbH) and Mercer Torgau GmbH & Co. KG (previously known as HIT Holzindustrie Torgau GmbH & Co. KG) and "Target Group Guarantor" means any of them.

"Target Group Factoring Agreement" means a factoring facility agreement entered into by the Target Group Borrower relating to trade receivables with Targo Commercial Finance AG as factor, originally dated 22 September 2018, as amended, and last amended on 17 August 2021, providing for a facility with a maximum commitment of up to EUR 15,000,000 for non-recourse factoring.

"TARGET2" means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

"TARGET Day" means any day on which TARGET2 is open for the settlement of payments in euro.

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

"Termination Date" means the date falling five (5) years after the date of this Agreement.

"Total Commitments" means the aggregate of the Commitments, being EUR 300,000,000 at the date of this Agreement.

"Transaction Documents" means the Finance Documents, the Shareholder Loan Agreements and any other document agreed to be a "Transaction Document" by both the Agent and the Borrowers.

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"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrowers.

"Transfer Date" means, in relation to an assignment and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26.5 (Procedure for assignment and transfer by way of assumption of contract (Vertragsübernahme)), the later of:

(a) the proposed Transfer Date specified in the Transfer Certificate; and

(b) the date on which the Agent executes the Transfer Certificate.

"Treasury Transactions" means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

"Ultimate Parent" means Mercer International Inc. a corporation organised under the laws of the State of Washington, United States of America, having an office at Suite 1120, 700 West Pender Street, Vancouver, British Columbia, Canada V6C 1G8.

"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.

"U.S. GAAP" means generally accepted accounting principles in the United States of America.

"Utilisation" means a utilisation of the Facility.

"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.

"Utilisation Request" means a notice substantially in the form set out in (Requests).

"VAT" means:

(a)
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
(b)
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

1.2.
Construction
(a)
Unless a contrary indication appears any reference in this Agreement to:
(i)
the "Agent", any "Arranger", the Coordinator", any "Finance Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to

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include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;
(ii)
"assets" includes present and future properties, revenues and rights of every description;
(iii)
"director" includes any statutory legal representative(s) (organschaftlicher Vertreter) of a person pursuant to the laws of its jurisdiction of incorporation, including but not limited to, in relation to a person incorporated or established in Germany, a managing director (Geschäftsführer) or member of the board of directors (Vorstand);
(iv)
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;
(v)
a "group of Lenders" includes all the Lenders;
(vi)
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
(vii)
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
(viii)
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
(ix)
a provision of law is a reference to that provision as amended or re-enacted; and
(x)
a time of day is a reference to Munich time.
(b)
The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
(c)
Section, Clause and Schedule headings are for ease of reference only.
(d)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

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(e)
Unless a contrary indication appears, when an obligation is stated to be an obligation of the Borrowers, each Borrower shall be jointly and severally (gesamtschuldnerisch) responsible for such obligation.
(f)
A Default or an Event of Default is "continuing" if it has not been remedied or waived.
(g)
A Borrower providing "cash cover" for an Ancillary Facility means a Borrower paying an amount in the currency of the Ancillary Facility to an interest-bearing account in the name of the Borrower and the following conditions being met:
(i)
the account is with the Ancillary Facility for which that cash cover is to be provided;
(ii)
until no amount is or may be outstanding under that Ancillary Facility withdrawals from the account may only be made to pay the relevant Ancillary Facility amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and
(iii)
the Borrower has executed a security document, in form and substance satisfactory to the Ancillary Facility with which that account is held, creating a first ranking security interest over that account.
(h)
A Borrower "repaying" or "prepaying" Ancillary Outstandings means:
(i)
that Borrower providing cash cover in respect of those Ancillary Outstandings;
(ii)
the maximum amount payable under the Ancillary Facility being reduced or cancelled in accordance with its terms; or
(iii)
the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility, and the amount by which Ancillary Outstandings are repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover, reduction or cancellation.
(i)
An amount borrowed includes any amount utilised under an Ancillary Facility.
(j)
Subject to Clause 37.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
(k)
Nothing in this Agreement shall be construed so as to exclude (erlassen) the liability of any person for its own gross negligence (grobe Fahrlässigkeit) and/or wilful misconduct (Vorsatz).
1.3.
Currency symbols and definitions

"", "EUR" and "euro" denote the single currency of the Participating Member States.

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1.4.
English 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.

1.5.
Shareholder Distribution Accounts

Notwithstanding any provision of this Agreement or any other Finance Document to the contrary, each Borrower, the Agent and the Lenders agree that:

(a)
the Shareholder Distribution Accounts shall not be subject to any Security from, by or under any Finance Document; and
(b)
nothing herein or in any Finance Document shall restrict, prohibit or otherwise limit any Borrower from paying, disbursing, transferring or transmitting all or parts of any moneys or assets in a Shareholder Distribution Account in its respective sole discretion from time to time and at any time.
1.6.
Relevant Restructuring Event
(a)
Notwithstanding anything to the contrary in this Agreement, the Finance Parties are not entitled to:
(i)
cancel any of the Commitments made available to a Relevant Borrower;
(ii)
terminate or cancel this Agreement or the Facility towards a Relevant Borrower;
(iii)
refuse to make a Loan or Utilisation available to a Relevant Borrower;
(iv)
cancel, accelerate, declare due and payable or cause repayment or prepayment of any amounts owing under this Agreement or any other Finance Document by a Relevant Borrower prior to its stated maturity; or
(v)
otherwise withhold performance or terminate, accelerate or, in any other way, modify this Agreement or any other Finance Document to the detriment of a Relevant Borrower,

solely by reason of the occurrence of an applicable Relevant Restructuring Event in relation to that Relevant Borrower, in each case if and to the extent such rights, remedies and/or measures are restricted or excluded by any applicable Relevant Termination Restriction.

(b)
Nothing in this Clause 1.6 shall limit or exclude:
(i)
any of the obligations of that Relevant Borrower or any other Obligor under this Agreement or any other Finance Document; or

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(ii)
any of the rights, remedies or entitlements of the Finance Parties:
(A)
against the respective Relevant Borrower arising on, or being available because of, any ground other than the occurrence of any applicable Relevant Restructuring Event;
(B)
against any other Obligor (other than the respective Relevant Borrower); or
(C)
being available under any applicable law (including section 55 paragraph 3 of the StaRUG).
(c)
In this Clause 1.6:

"COMI" means, in relation to a person, its centre of main interest (as that term is used in Article 3(1) of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the "Regulation") or any establishment (as that term is used in Article 2(10) of the Regulation) of that person.

"EU Restructuring Directive" means the Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).

"Relevant Borrower" means any Borrower having its COMI in a member state of the European Union, Iceland, Liechtenstein or Norway.

"Relevant Termination Restriction" means:

(a)
in relation to a Relevant Borrower which has its COMI in Germany, section 44 paragraph 1 of the StaRUG; and
(b)
in relation to a Relevant Borrower which has its COMI in a member state of the European Union (other than Germany), Iceland, Liechtenstein or Norway, the law or regulation of that member state of the European Union, Iceland, Liechtenstein or Norway, as the case may be, which implements paragraph 5 of Article 7 (Consequences of the stay of individual enforcement actions) of the EU Restructuring Directive.

"Relevant Restructuring Event" means:

(a)
in relation to a Relevant Borrower which has its COMI in Germany, any StaRUG Event; and
(b)
in relation to a Relevant Borrower which has its COMI in a member state of the European Union (other than Germany), Iceland, Liechtenstein or Norway, any

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event in relation to which the law or regulation of that member state of the European Union, Iceland, Liechtenstein or Norway, as the case may be, which implements paragraph 5 of Article 7 (Consequences of the stay of individual enforcement actions) of the EU Restructuring Directive restricts or excludes a creditor's rights, remedies and/or measures vis-à-vis the relevant debtor(s) which are or become available or exercisable by reason of such event.

"StaRUG" means the German Act on the Stabilisation and Restructuring Framework for Companies (Unternehmensstabilisierungs- und -restrukturierungsgesetz).

"StaRUG Event" means, in relation to a person which has its COMI in Germany, a restructuring matter (Restrukturierungssache) being pending (rechtshängig) against that person or that person utilising any tools of the restructuring or stabilisation framework (Instrumente des Stabilisierungs- und Restrukturierungsrahmens) pursuant to the StaRUG.

SECTION 2
THE FACILITY

2.
The Facility
2.1.
The Facility
(a)
Subject to the terms of this Agreement, the Lenders make available to the Borrowers a euro revolving loan facility in an aggregate amount equal to the Total Commitments subject to Clause 3 (Accordion Increase).
(b)
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make all or part of its Commitment available to any Borrower as a euro denominated Ancillary Facility, provided that the aggregate amount of Ancillary Facilities shall not at any time exceed an amount of EUR 50,000,000.
2.2.
Increase
(a)
The relevant Borrower may by giving prior notice to the Agent by no later than the date falling thirty (30) calendar days after the effective date of a cancellation of:
(i)
the Available Commitment of a Defaulting Lender in accordance with paragraph (g) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender); or
(ii)
the Commitment of a Lender in accordance with:
(A)
Clause 9.1 (Illegality); or
(B)
paragraph (a) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender),

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request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in euros of up to the amount of the Commitments so cancelled as follows:

(iii)
the increased Commitments will be assumed by one or more Eligible Institutions (each an "Increase Lender") each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;
(iv)
each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;
(v)
each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;
(vi)
the Commitments of the other Lenders shall continue in full force and effect; and
(vii)
any increase in the Commitments shall take effect on the date specified by the relevant Borrower in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.
(b)
The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.
(c)
The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.
(d)
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound

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by that decision to the same extent as it would have been had it been an Original Lender.
(e)
The relevant Borrower shall, promptly on demand, pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.
(f)
Neither the Agent nor any Lender shall have any obligation to find or to be an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

Clause 26.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

(i)
an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;
(ii)
the "New Lender" were references to that "Increase Lender"; and
(iii)
a "re-assignment" and "re-assignment and re-transfer by assumption of contract (Vertragsübernahme)" were references to respectively an "assignment" and "assignment and transfer by assumption of contract (Vertragsübernahme)".
2.3.
Finance Parties' rights and obligations
(a)
The obligations of each Finance Party under the Finance Documents are several and do not constitute a joint obligation (Ausschluss der gesamtschuldnerischen Haftung). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
(b)
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and do not constitute a joint creditorship (Ausschluss der Gesamtgläubigerschaft) and any debt arising under the Finance Documents to a Finance Party from an Obligor is, except as otherwise set out in this Agreement or any other Finance Document, a separate and independent debt (Ausschluss der gesamtschuldnerischen Haftung) in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

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(c)
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
2.4.
Obligors' Agent
(a)
Each Obligor (and MR with respect to MS and MS with respect to MR) by its execution of this Agreement or an Accession Letter irrevocably appoints each of MR and MS individually (each acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
(i)
each of MR and MS on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and
(ii)
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to either MR or MS (as the case may be), and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by either Obligors' Agent or given to either Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.

3.
Accordion Increase
3.1.
Facility Increase
(a)
The Obligors’ Agent may by written notice (the "Increase Request") to the Agent not less than one (1) calendar year prior to the Termination Date invite:
(i)
all Lenders (each an "Existing Increase Lender"); and/or

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(ii)
any other banks or financial institutions or trusts, funds or other entities which are regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets and are acceptable to the Agent (acting on the instructions of the Majority Lenders) (each an "Acceding Increase Lender"), to agree to participate in the Facility with additional Commitments not exceeding EUR 75,000,000 in aggregate at any time (the "Increase Amount"), whereas the additional Commitments may consist of several individual amounts.
(b)
The Increase Request is irrevocable.
(c)
The Agent must promptly notify the Lenders of an Increase Request.
(d)
The Obligors’ Agent may submit an Increase Request once.
(e)
The Increase Amount shall be a minimum of EUR 25,000,000.
(f)
The Total Commitments shall not exceed EUR 375,000,000 at any time following an increase under this Clause 3.
(g)
Each Existing Increase Lender and/or Acceding Increase Lender which has obtained all applicable internal approvals to increase its Commitment or to provide its Commitment (as applicable) shall on or before the date (the "Increase Notification Deadline") falling 30 Business Days after the date of the Increase Request notify the Agent of such Commitment.
(h)
The Agent must promptly after the Increase Notification Deadline notify the Obligors’ Agent of the Commitments referred to in paragraph (g) above. Upon such notification, the Obligors’ Agent shall promptly notify the Agent of (i) the Increase Effective Date which shall be a date falling not earlier than the date falling eight (8) Business Days after it has so informed the Agent, (ii) the Increase Amount and (iii) the amount of the Commitments per Lender (including any Acceding Increase Lenders) as of the Increase Effective Date.
(i)
If the aggregate amount of the proposed increase in Commitments exceeds the Increase Amount, then the proposed increase in Commitments of each Existing Increase Lender and each Acceding Increase Lender shall be reduced on a pro rata basis until the aggregate of the proposed increase in Commitments of all the Lenders (including the Acceding Increase Lenders) equals the Increase Amount.
(j)
Unless otherwise provided for in the relevant Increase Certificate or Increase Accession Agreement, the terms and conditions of the Facility (other than changes resulting from the inclusion of the Increase Amount) shall remain unchanged and in full force and effect.

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3.2.
Notification of participation in Increase Amount

The Agent shall notify each Existing Increase Lender and each Acceding Increase Lender of the amount of its additional or new Commitment by no later than five (5) Business Days prior the Increase Effective Date. The aggregate of the increases in the Commitments of all Existing Increase Lenders and the new Commitments of all Acceding Increase Lenders pursuant to this Clause 3 shall not exceed the Increase Amount.

3.3.
Delivery of Increase Certificates / Increase Accession Agreements

No later than three (3) Business Days prior to the Increase Effective Date:

(a)
each Lender which is an Existing Increase Lender shall deliver to the Agent a duly completed and executed Increase Certificate; and
(b)
the Obligors’ Agent shall procure that each Acceding Increase Lender shall deliver to the Agent a duly completed and executed Increase Accession Agreement.
3.4.
Effectiveness of Increase
(a)
On an Increase Effective Date, the Agent shall execute each Increase Certificate and each Increase Accession Agreement delivered to it which shall take effect in accordance with Clause 3.6 (Lender Increase) and Clause 26.8 (Acceding Increase Lenders) as applicable.
(b)
On the next occurring repayment date after an Increase Effective Date, the Borrower shall repay each Loan made to it provided that for the avoidance of doubt, the Borrower shall be entitled to redraw each amount so repaid subject to and in accordance with this Agreement.
(c)
An increase under this Clause 3 will only be effected if on the Increase Effective Date:
(i)
no Default is continuing or would result from the increase and the Obligors’ Agent confirms this in the relevant Increase Request; and
(ii)
the Repeating Representations to be made by each Obligor are true in all material respects and this is confirmed in the relevant Increase Request.
3.5.
No obligation to participate in Increase
(a)
No Lender shall have any obligation to increase its Commitment or incur any other obligations under this Agreement and the other Finance Documents in relation to any Increase Amount, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b)
If a Lender does not want to increase its Commitment, the Commitment of such Lender shall remain unchanged.

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3.6.
Lender Increase
(a)
A Lender may increase its Commitment (as requested by the Obligors’ Agent), for the purposes of this Clause 3 by delivering an Increase Certificate in accordance with this Clause.
(b)
Any Lender specified in sub‑clause (a) shall increase its Commitment if the Agent executes an Increase Certificate which has been duly completed and signed on behalf of such proposed Existing Increase Lender.
(c)
On the date that the Agent executes each Increase Certificate, the Agent, the Coordinator, the Sustainability Coordinator and each Lender party to that Increase Certificate, the other Lenders and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Lender been an Original Lender with the Commitment specified by it in that Increase Certificate.
4.
Purpose
4.1.
Purpose

Each Borrower shall apply all amounts borrowed by it under the Facility and any utilisation of any Ancillary Facility towards:

(a)
first: refinancing of the Existing Facility, including any refinancing in accordance with Clause 7.3 (Roll-in of Existing Letters of Credit);
(b)
second: general corporate purposes; and/or
(c)
third: the SPA Acquisition in accordance with Clause 6.6 (Utilisation of Facility for SPA Acquisition), but not towards, in the case of any utilisation of any Ancillary Facility, prepayment of any Loan.
4.2.
Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

5.
Conditions of Utilisation
5.1.
Initial conditions precedent
(a)
No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Borrowers and the Lenders promptly upon being so satisfied.

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(b)
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
5.2.
Further conditions precedent

The Lenders will only be obliged to comply with Clause 6.4 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

(a)
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and
(b)
the Repeating Representations to be made by each Obligor are true in all material respects.

5.3.
Maximum number of Loans
(a)
A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation 12 or more Loans (in aggregate) would be outstanding.
(b)
Any Separate Loan shall not be taken into account in this Clause 5.3.

SECTION 3

UTILISATION

6.
Utilisation
6.1.
Delivery of a Utilisation Request

A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

6.2.
Completion of a Utilisation Request
(a)
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i)
the proposed Utilisation Date is a Business Day within the Availability Period;
(ii)
the currency and amount of the Utilisation comply with Clause 6.3 (Currency and amount); and
(iii)
the proposed Interest Period complies with Clause 11 (Interest Periods).

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(b)
Only one Loan may be requested in each Utilisation Request.
6.3.
Currency and amount
(a)
The currency specified in a Utilisation Request must be euro.
(b)
The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of EUR 1,000,000 (or its equivalent) or if less, the Available Facility.
(c)
The aggregate amount of Loans outstanding and borrowed by MTP and Ancillary Facilities made available to MTP shall not exceed EUR 70,000,000 at any time.
(d)
The aggregate amount of Loans outstanding and borrowed by MH and Ancillary Facilities made available to MH shall not exceed EUR 50,000,000 at any time.
(e)
The aggregate amount of Loans outstanding and borrowed by ML and Ancillary Facilities made available to ML shall not exceed EUR 5,000,000 at any time.
(f)
The aggregate amount of Loans outstanding and borrowed by the Target Group Borrower and Ancillary Facilities made available to the Target Group Borrower shall not exceed EUR 70,000,000 at any time.
6.4.
Lenders' participation
(a)
If the conditions set out in this Agreement have been met and subject to Clause 8.1 (Repayment of Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
(b)
Other than as set out in paragraph (c) below, the amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
(c)
If a Utilisation is made to repay Ancillary Outstandings, each Lender's participation in that Utilisation will be in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Utilisations then outstanding bearing the same proportion to the aggregate amount of the Utilisations then outstanding as its Commitment bears to the Total Commitments.
(d)
The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan in each case by the Specified Time and, if different, the amount of that participation to be made available in accordance with Clause 31.1 (Payments to the Agent), in each case by the Specified Time.

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6.5.
Cancellation of Commitment
(a)
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
6.6.
Utilisation of Facility for SPA Acquisition
(a)
In respect of the SPA Acquisition, the Borrowers shall be entitled to utilize:
(i)
the SPA Acquisition Advance;
(ii)
cash balances available on the Shareholder Distribution Accounts; and
(iii)
otherwise restricted cash balances in the current accounts of the Borrowers.
(b)
The balance of any additional funds required for the SPA Closing (including costs and expenses) shall be funded from the SPA Acquisition Shareholder Loan.
7.
Ancillary Facilities
7.1.
Type of Facility

An Ancillary Facility may be made available by way of:

(a) an overdraft facility;

(b) a guarantee, bonding, documentary or stand-by letter of credit facility;

(c) a short term loan facility;

(d) a derivatives facility;

(e) a foreign exchange facility; or

(f) any other facility or accommodation required in connection with the business of the Group and which is agreed by the relevant Borrower with an Ancillary Lender.

7.2.
Availability
(a)
If the relevant Borrower and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide all or part of its Commitment as an Ancillary Facility.

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(b)
An Ancillary Facility shall not be made available unless, not later than 3 Business Days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from the relevant Borrower:
(i)
a notice in writing requesting the establishment of an Ancillary Facility and specifying:
(A)
the proposed Borrower(s) which may use the Ancillary Facility;
(B)
the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;
(C)
the proposed type of Ancillary Facility to be provided;
(D)
the proposed Ancillary Lender; and
(E)
the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, in the case of a Multi-account Overdraft, its Designated Gross Amount and its Designated Net Amount; and
(ii)
any other information which the Agent may reasonably request in connection with the Ancillary Facility.
(c)
The Agent shall promptly notify the relevant Borrower, the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.
(d)
Subject to compliance with paragraph (b) above:
(i)
the Lender concerned will become an Ancillary Lender; and
(ii)
the Ancillary Facility will be available,

with effect from the Ancillary Commencement Date as agreed by the relevant Borrower and the Ancillary Lender (and as specified in the notice referred to in paragraph (b) above).

7.3.
Roll-in of Existing Letters of Credit

Contemporaneously with the first utilisation of the Facility on the first Utilisation Date, each of the Existing Letters of Credit issued by a Lender under or in connection with the Existing Facility shall be rolled-in and deemed to be issued under the Ancillary Facilities granted by that Lender under this Agreement.

7.4.
Terms of Ancillary Facilities
(a)
Except as provided below, the terms of any Ancillary Facility will be those agreed to by the Ancillary Lender and the relevant Borrower.
(b)
Those terms:

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(i)
must be based upon normal commercial terms at that time (except as varied by this Agreement);
(ii)
may allow only a Borrower to use the Ancillary Facility;
(iii)
may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;
(iv)
may not allow a Lender's Ancillary Commitment to exceed that Lender's Available Commitment (before taking into account the effect of the Ancillary Facility on that Available Commitment); and
(v)
must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid not later than the Termination Date applicable to the Facility (or such earlier date as the Commitment of the relevant Ancillary Lender is reduced to zero).
(c)
If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for:
(i)
Clause ‎‎34.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility;
(ii)
an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail; and
(iii)
where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document in which case that term of this Agreement shall not prevail.
(d)
Interest, commission and fees on Ancillary Facilities are dealt with in Clause 13.5 (Interest, commission and fees on Ancillary Facilities).
7.5.
Repayment of Ancillary Facility
(a)
An Ancillary Facility shall cease to be available on the Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.
(b)
If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced by the amount of the Ancillary Facility so expired.
(c)
No Ancillary Lender may demand repayment or prepayment of any Ancillary Outstandings prior to the expiry date of the relevant Ancillary Facility unless:
(i)
required to reduce the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings;

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(ii)
the Total Commitments have been cancelled in full, or all outstanding Loans have become due and payable in accordance with the terms of this Agreement;
(iii)
(it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility (or it becomes unlawful for any Affiliate of the Ancillary Lender for the Ancillary Lender to do so); or
(iv)
both:
(A)
the Available Commitments relating to the Facility; and
(B)
the notice of the demand given by the Ancillary Lender,

would not prevent the relevant Borrower funding the repayment of those Ancillary Outstandings in full by way of Utilisation.

(b)
If a Utilisation is made to repay Ancillary Outstandings in full, the relevant Ancillary Commitment shall be reduced to zero.
7.6.
Limitation on Ancillary Outstandings

Each Borrower shall procure that:

(a)
the Ancillary Outstandings under any Ancillary Facility shall not exceed the Ancillary Commitment applicable to that Ancillary Facility; and
(b)
in relation to a Multi-account Overdraft:
(i)
the Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that Multi-account Overdraft; and
(ii)
the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that Multi-account Overdraft.
7.7.
Adjustment for Ancillary Facilities upon acceleration
(a)
In this Clause 7.7:
(i)
"Facility Outstandings" means, in relation to a Lender, the aggregate of :
(A)
its participation in each Loan then outstanding (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under the Facility); and
(B)
if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender

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(together with the aggregate amount of all accrued interest, fees and commission owed to itas an Ancillary Lender in respect of the Ancillary Facility); and
(ii)
"Total Facility Outstandings" means the aggregate of all Facility Outstandings.
(b)
If a notice is served under Clause ‎25.18 (Acceleration) (other than a notice declaring Loans to be due on demand), each Lender and each Ancillary Lender shall (subject to paragraph (g) below) promptly adjust (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Facility Outstandings) their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility to the extent necessary to ensure that after such transfers the Facility Outstandings of each Lender bear the same proportion to the Total Facility Outstandings as such Lender's Commitment bears to the Total Commitments, each as at the date the notice is served under Clause ‎25.18 (Acceleration).
(c)
If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (b) above, then each Lender and each Ancillary Lender will make a further adjustment (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Facility Outstandings to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability.
(d)
Any transfer of rights and obligations relating to Facility Outstandings made pursuant to this Clause 7 shall be made for a purchase price in cash, payable at the time of transfer, in an amount equal to those Facility Outstandings (less any accrued interest, fees and commission to which the transferor will remain entitled to receive notwithstanding that transfer pursuant to Clause 26.9 (Pro rata interest settlement)).
(e)
Prior to the application of the provisions of paragraph (b) above, an Ancillary Lender that has provided a Multi-account Overdraft shall set-off any Available Credit Balance on any account comprised in that Multi-account Overdraft.
(f)
All calculations to be made pursuant to this Clause 7.7 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders.
(g)
This Clause 7.7 shall not oblige any Lender to accept the transfer of a claim relating to an amount outstanding under an Ancillary Facility which is not denominated (pursuant to the relevant Finance Document) in either euro or in another currency which is acceptable to that Lender.
7.8.
Information

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Each Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. Each Borrower consents to all such information being released to the Agent and the other Finance Parties.

7.9.
Amendments and Waivers – Ancillary Facilities

No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 7). In such a case, Clause 37 (Amendments and Waivers) will apply.

SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION

8.
Repayment
8.1.
Repayment of Loans
(a)
Subject to paragraph (c) below, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.
(b)
Without prejudice to each Borrower's obligation under paragraph (a) above, if:
(i)
one or more Loans are to be made available to a Borrower:
(A)
on the same day that a maturing Loan is due to be repaid by that Borrower; and
(B)
in whole or in part for the purpose of refinancing the maturing Loan; and
(ii)
the proportion borne by each Lender's participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender's participation in the new Loans to the aggregate amount of those new Loans,

the aggregate amount of the new Loans shall, unless that Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:

(A)
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

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(1)
the relevant Borrower will only be required to make a payment under Clause 31.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and
(2)
each Lender's participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan and that Lender will not be required to make a payment under Clause 31.1 (Payments to the Agent) in respect of its participation in the new Loans; and
(B)
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:
(1)
the relevant Borrower will not be required to make a payment under Clause 31.1 (Payments to the Agent); and
(2)
each Lender will be required to make a payment under Clause 31.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender's participation in the maturing Loan and the remainder of that Lender's participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan.
(b)
At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date applicable to the Facility and will be treated as separate Loans (the "Separate Loans").
(c)
If a Borrower makes a prepayment of a Loan, a Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving not less than five (5) Business Days' prior notice to the Agent. The proportion borne by the amount of the prepayment of the Separate Loan to the amount of the Separate Loans shall not exceed the proportion borne by the amount of the prepayment of the Loan to the Loans. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.
(d)
Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Separate Loan.
(e)
The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

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9.
Prepayment and Cancellation
9.1.
Illegality

If, in any applicable jurisdiction, at any time, it is or will become unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation or at any time, it is or will become unlawful for any Affiliate of a Lender for that Lender to do so:

(a)
that Lender shall promptly notify the Agent upon becoming aware of that event;
(b)
upon the Agent notifying the Borrowers, the Available Commitment of that Lender will be immediately cancelled; and
(c)
to the extent that the Lender's participation has not been transferred pursuant to paragraph (d) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower shall repay that Lender's participation in the Loans made to that Borrowers on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by laws) and that Lender's corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.
9.2.
Change of control

If a Change of Control occurs:

(a)
the Borrowers shall promptly notify the Agent upon becoming aware of that event;
(b)
a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and
(c)
if a Lender so requires and notifies the Agent within 5 days of the Company notifying the Agent of the event, the Agent shall, by not less than (30) Business Days' notice to the Obligors’ Agent, cancel each Available Commitment of that Lender and declare the participation of that Lender in all Loans and Ancillary Outstandings, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, any Commitment of that Lender shall immediately cease to be available for further utilisation and all such Loans, accrued interest and other amounts shall become immediately due and payable.
9.3.
Voluntary cancellation

A Borrower may, if it gives the Agent not less than five (5) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of EUR 1,000,000 (or its equivalent)) of the Available Facility. Any cancellation under this Clause 9.3 shall reduce the Commitments of the Lenders rateably.

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9.4.
Voluntary prepayment of Loans

The Borrower to which a Loan has been made may, if it gives the Agent not less than thirty (30) calendar days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the amount of the Loan by a minimum amount of EUR 1,000,000 (or its equivalent)).

9.5.
Right of replacement or repayment and cancellation in relation to a single Lender
(a)
If:
(i)
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause ‎14.2 (Tax gross-up); or
(ii)
any Lender claims indemnification from a Borrower under Clause ‎14.3 (Tax indemnity), the Borrowers may, while the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender's participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below; or
(b)
On receipt of a notice of cancellation referred to in paragraph (a) above in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.
(c)
On the last day of each Interest Period which ends after the Borrowers have given notice of cancellation under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrowers in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan.
(d)
If:
(i)
any of the circumstances set out in paragraph (a) above apply to a Lender; or
(ii)
an Obligor becomes obliged to pay any amount in accordance with Clause 9.1 (Illegality) to any Lender, the Borrower may, on five (5) Business Days' prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and to the extent permitted by law, that Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 26 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender's

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participation in the outstanding Loans and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.
(e)
The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
(i)
the Borrower shall have no right to replace the Agent;
(ii)
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
(iii)
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
(iv)
the Lender shall only be obliged to assign and transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
(f)
A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
(g)
(i)
If any Lender becomes a Defaulting Lender, the relevant Borrower may, at any time while the Lender continues to be a Defaulting Lender, give the Agent five (5) Business Days' notice of cancellation of the Available Commitment of that Lender.
(ii)
On the notice referred to in paragraph (g) above becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (g) above, notify all the Lenders.

9.6.
Restrictions
(a)
Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
(b)
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

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(c)
Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.
(d)
The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
(e)
Subject to Clause 2.2 (Increase) and Clause 3 (Accordion Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
(f)
If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender.
(g)
If all or part of any Lender's participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 5.2 (Further conditions precedent)), an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
9.7.
Application of prepayments

Any prepayment of a Loan pursuant to Clause 9.4 (Voluntary prepayment of Loans) shall be applied pro rata to each Lender's participation in that Loan.

SECTION 5
COSTS OF UTILISATION

10.
Interest
10.1.
Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(a)
Margin; and
(b)
EURIBOR.
10.2.
Sustainability KPI Related Margin Adjustment
(a)
Following the delivery of a Sustainability KPI Compliance Certificate, the applicable Margin shall be increased or reduced as set out in the Sustainability Target Statement, provided that the Margin shall at no point be increased or reduced by more than 0.05 percentage points per annum.

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(b)
If and as long as the Borrowers fail to provide the most recent Sustainability KPI Compliance Certificate within the timeline provided under Clause 21.5 (unless the timeline is extended with the written consent of the Agent (acting on the instructions of the Majority Lenders)), or the Sustainability KPI Compliance Certificate fails to include all Sustainability KPI's or any other information or document required under Clause 21.5 (Information relating to the Sustainability Score Related Margin Adjustment), the applicable Margin will be increased by 0.05 percentage points per annum unless otherwise agreed with the Agent.
(c)
Any adjustment of the applicable Margin pursuant to paragraph (a) above shall take effect for any Interest Period commencing after the date on which the Agent has received the Sustainability KPI Compliance Certificate and the Sustainability Report confirming such adjustment (unless received later than five (5) Business Days before the first day of the next Interest Period, in which case the adjustment of the applicable Margin shall take effect on the first day of the next following Interest Period).
(d)
If, subject to a reasonable evaluation of the Borrowers and/or the Agent (acting on the instructions of the Majority Lenders):
(i)
any Sustainability KPI or any KPI Target Score is no longer appropriate, relevant or representative (e.g. due to, inter alia, changes in law or regulation or in relation to the core business of the Group as a result of, inter alia, any merger, acquisition, disposal or otherwise); or
(ii)
the Ultimate Parent is not, or anticipates that it will not be able to report any Sustainability KPI at the relevant time; or
(iii)
any relevant third party ratings or similar firm amends the valuation methodology in such a way that their defined ESG rating score can no longer be used in a comparable manner to determine the Margin or the Margin adjustment,

the Borrowers and the Agent (acting on the instructions of the Majority Lenders) shall, upon the Borrowers’ request, enter into good faith negotiations with the aim to replace the relevant Sustainability KPI or KPI Target Score as applicable. Subject to paragraph (e) below, any adjustment of the Margin pursuant to paragraphs (a) and (c) above applicable at the date on which negotiations are requested shall continue to apply during the period of negotiations.

(e)
If the Borrowers and the Agent (acting on the instructions of the Majority Lenders) have not agreed on the required replacement of the relevant Sustainability KPI(s) or KPI Target Score(s), as applicable, within twenty (20) Business Days upon the Agent having received the Borrowers’ request to enter into good faith negotiations pursuant to paragraph (c) above, the applicable Margin shall be determined without any adjustment pursuant to paragraph (a) above (and if any adjustment to the

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Margin has already been applied pursuant to paragraph (a) above at that time, it shall be disregarded after the expiry of such twenty (20) Business Day period).
(f)
If the Borrowers notify the Agent that the Ultimate Parent ceased or will cease to target any Sustainability KPI (or all of them) (including a reasonable explanation of such decision satisfactory to the Agent (acting reasonably in the circumstances), which shall, for the avoidance of doubt, not be merely based on the fact that any KPI Target Score will or may be missed), the Margin shall be determined without any adjustment pursuant to paragraph (a) above (and if any adjustment to the Margin has already been applied pursuant to paragraph (a) above at that time, it shall be disregarded after twenty (20) Business Day period) upon the Agent having received such notice from the Borrowers.
(g)
In the case that all of the Sustainability KPI's cease to exist, the Facility will be declassified as a “sustainability-linked facility” and this Clause 10.2 and Clause 21.5 (Information relating to the Sustainability Score Related Margin Adjustment) will cease to apply until such time that the Ultimate Parent next determines the KPI Target Scores for each Sustainability KPI as notified by the Borrowers to the Agent and approved by the Agent (acting on the instructions of the Majority Lenders).
(h)
Notwithstanding any other term of this Agreement, in no event or circumstances will a Default or Event of Default occur or be deemed to occur by any reason of the Borrowers or the Ultimate Parent not complying with this Clause 10.2, including, among other things, by not providing a Sustainability KPI Compliance Certificate, a Sustainability Report or failure to achieve any Sustainability KPI's, save for the failure to pay the applicable Margin as adjusted in accordance with this Clause 10.2.
10.3.
Payment of interest
(a)
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).
(b)
If the Compliance Certificate received by the Agent which relates to the relevant financial statements shows that a higher Margin should have applied during a certain period, then the Borrowers shall promptly pay to the Agent any such shortfall, as contemplated by paragraph (ii) in the definition of "Margin" herein, provided that the Borrowers shall not be required to make any payment pursuant to this Clause 10.3(b) for any period of time after the date that is twelve (12) months after the date on which the relevant interest was initially paid, except for cases where the event or trigger justifying a higher Margin was not demonstrable from the Compliance Certificates and the other information which the Lenders have received from the Borrower, both analysed with the same standard of care exercised by the Lenders in their own affairs since the occurrence of such event or trigger.

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10.4.
Default interest and lump sum damages
(a)
If an Obligor fails to pay any amount (other than interest) payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (c) below, is two (2) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).
(b)
If an Obligor fails to pay interest payable by it under the Finance Documents on its due date, lump sum damages (pauschalierter Schadensersatz) shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (c) below, is two (2) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). In the case of lump sum damages, the relevant Obligor shall be free to prove that no damages have arisen or that damages have not arisen in the asserted amount and any Finance Party shall be entitled to prove that further damages have arisen. Any interest or lump sum accruing under this Clause ‎10.4 shall be immediately payable by the Obligor on demand by the Agent.
(c)
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
(i)
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
(ii)
the rate of interest applying to the overdue amount during that first Interest Period shall be two (2) per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.
10.5.
Notification of rates of interest
(a)
The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.
(b)
The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.
11.
Interest Periods
11.1.
Selection of Interest Periods

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(a)
A Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan.
(b)
Subject to this Clause 11, a Borrower may select an Interest Period of one (1), three (3) or six (6) Months, or of any other period agreed between the Borrower, the Agent and all the Lenders.
(c)
An Interest Period for a Loan shall not extend beyond the Termination Date.
(d)
Each Interest Period for a Loan shall start on the Utilisation Date.
(e)
A Loan has one Interest Period only.
11.2.
Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

12.
Changes to the Calculation of Interest
12.1.
Unavailability of Screen Rate
(a)
If no Screen Rate is available for EURIBOR for the Interest Period of a Loan, the applicable EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
(b)
If no Screen Rate is available for EURIBOR for the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate, there shall be no EURIBOR for that Loan and Clause 12.3 (Cost of funds) shall apply to that Loan for that Interest Period.
12.2.
Market disruption

If before close of business in Munich on the Quotation Day for the relevant Interest Period the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for euro would be in excess of EURIBOR then Clause 12.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

12.3.
Cost of funds