EXHIBIT 10.2
MASTER CREDIT AGREEMENT
UBS CORPORATE FINANCING
1. BORROWER
MGI Luxury Group S.A:
Nidaugasse 35
2502 Biel
(hereinafter referred to as the 'Borrower')
2. LENDER
UBS AG
Barenplatz 8
3011 Bern
(hereinafter referred to as 'UBS')
3. CREDIT FACILITY
UBS grants the Borrower a credit facility in a MAXIMUM AMOUNT OF 8 000 000 CHF
(Swiss Francs eight million).
4. FINANCING PURPOSE
To finance operating assets.
5. AVAILABILITY
Subject to the terms and conditions of this Credit Agreement, this credit
facility is available in the following forms:
- - as a current account overdraft in CHF and/or any freely-available and
convertible currency.
- - as UBS fixed advances with terms of 1 - 12 months in an amount of at least
500 000 CHF and/or the equivalent in any freely-available and convertible
currency.
- - for issuing of guarantees in a form acceptable to UBS for a period of up
to one year.
- - for opening of documentary credits in a form acceptable to UBS for a
period of up to one year.
6. INTEREST RATES AND COMMISSION
6.1 UBS CURRENT ACCOUNTS
The interest rate currently applicable for use with CHF is 4.5% p.a.
No loan commission is charged.
At the end of each calendar quarter, a closing statement showing interest shall
be provided. UBS shall have the right to adjust interest rates to changing
market conditions at any time with immediate effect.
Interest rates and commission are subject to a separate Pooling Agreement dated
21st February 2002.
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6.2 UBS FIXED ADVANCES
For any advance with a term of up to and including 6 months, principal and
interest shall be calculated and charged as a single payment at maturity.
For any advance with a term of more than 6 months, interest shall be calculated
and charged quarterly at the end of each calendar quarter. Principal and
interest shall be calculated and charged at maturity.
The base interest rate shall be calculated according to Euromarket rates for the
relevant term and currency plus a UBS margin.
The interest rate shall be fixed two bank working days prior to.any advance
being drawn down or renewed, for the corresponding term and currency. The
instructions for drawdown or renewal must be received by UBS at least two bank
working days before such drawdown or renewal. Where such instructions are
unavailable, advances falling due will not be renewed and both principal and
interest will be debited from the relevant current account.
6.3 GUARANTEES/DOCUMENTARY CREDITS
Commission and fees shall be fixed by UBS on a case-by-case basis, and shall
depend on the nature, size, term and complexity of the transaction.
6.4 INTEREST CALCULATION
Interest shall be calculated on a 365/360 basis, i.e. the actual number of days
per month divided by a 360-day year.
7. TERM
Until further notice.
8. TERMINATION
8.1 ORDINARY TERMINATION
The Borrower shall have the right to terminate this Credit Agreement at any time
with immediate effect.
UBS shall have the right to terminate this Credit Agreement at any time with
immediate effect, and to refuse to make funds available to the Borrower under
the credit facility at its discretion, without having to provide any reasons.
Any termination shall cancel the unused portion of the credit facility with
immediate effect. To the extent that the credit facility has been drawn down,
any outstanding amounts shall become due and payable as follows:
- - UBS CURRENT ACCOUNT
immediately
- - UBS FIXED ADVANCE
on expiration of the agreed term
Any guarantees and documentary credits issued by UBS shall remain in effect with
no changes until their expiration in accordance with the terms and conditions
applicable on a case-by-case basis, and the Borrower shall remain fully liable.
8.2 EXTRAORDINARY TERMINATION
The Borrower shall have the right to terminate this Credit Agreement at any time
by giving 30 calendar days prior notice, and to repay any outstanding amounts in
whole or in part. In the event that any prepayment is made during a fixed
interest period or on a day other than the date originally agreed for repayment,
an indemnity for prepayment shall be payable-pursuant to <<Indemnity for
Prepayments>> on the actual date that the prepayment is made.
UBS shall have the right to terminate this Credit Agreement at any time with
immediate effect, and to declare all outstanding amounts including accrued
interest, commission, fees, etc, immediately due and payable, irrespective of
the term of any credit facility granted, if:
1) the Borrower or a Group company (<<Group company's shall hereinafter mean any
company within the meaning of Art. 663 lit, e, para. 1 of the Swiss Code of
Obligations that may be deemed to belong to the Borrower's consolidated group
of companies) is more than 30 calendar days in arrears with payment of
interest, commission and/or principal payments owed to UBS or a third party
(including any parties that may have acquired claims under the credit
granted), or fails to reduce overdrafts by repayment or providing sufficient
additional security within the time period set therefor by UBS.
2) the Borrower or one of its Group companies is/are required by official order
(in particular in the area of environmental protection) to undertake remedial
measures which are deemed by UBS as having a potentially material effect on
the Borrower's ability to perform its financial obligations.
3) there has been a change of ownership/controlling interests in relation to the
Borrower which UBS deems to be material.
4) the Borrower or a Group company changes its/their legal or commercial
structure, e.g., through liquidation, sale of a substantial part of its
assets, change of its objects or business activities, merger or
restructuring, provided that the relevant event is deemed by UBS as having a
potentially material effect on the Borrower's ability to perform its
financial obligations.
5) with regard to the Borrower or a Group company bankruptcy proceedings or a
stay of bankruptcy proceedings are filed and/or an application for court or
out-of-court creditor protection is made.
6) the Borrower or a Group company has suspended payments or the earnings or
asset position of the Borrower or a Group company is deemed by UBS to have
deteriorated significantly.
7) the Borrower or a Group company is in breach of any other obligations arising
under this Credit Agreement.
Should the credit facility have been utilized in the form of guarantees and
documentary credits at the time of the extraordinary termination, the Borrower
undertakes to release UBS immediately from such contingent obligations or to
provide security by pledging marketable assets up to the full amount of those
commitments plus a customary bank margin.
9. INDEMNITY IN THE EVENT OF PREMATURE REPAYMENT
An indemnity shall be payable in the event of premature repayment. This
indemnity shall be calculated on the basis of the difference between the agreed
interest fate and the rate obtainable at the time of the premature repayment on
an investment in the money or capital market with the same period remaining to
maturity. If the agreed interest rate is above the rate for such investments,
the difference shall be owed by the Borrower, if the agreed rate is below the
rate for the investment, the difference shall be credited to the Borrower.
If, in connection with any extraordinary termination, UBS declares that capital
drawn down is due for repayment prior to maturity, the Borrower shall be liable
to indemnify UBS for all loss suffered and/or costs incurred as a result, in
particular for any difference between the agreed interest rate and the rate
obtainable at the time of the premature repayment on an investment in the money
or capital market with the same period remaining to maturity. UBS reserves the
right to claim additional compensation.
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1) the Borrower has not created any security interest in respect of its own
obligations and/or the obligations of third parties other than security-given
under this Credit Agreement or in the context of other credit agreements with
UBS and/or any security given in favour of other creditors with respect to
which the Borrower has expressly notified UBS.
2) no event has occurred which would entitle UBS to effect extraordinary
termination, and no legal action is pending which could have a material
adverse effect on the Borrower or its assets
11. NEGATIVE COVENANTS
The Borrower undertakes to refrain from entering into any other obligations
which are secured by any charge upon its assets, and to refrain from providing
security for any existing debt unless all claims arising out of the present
agreement have been secured to a degree deemed necessary by UBS so that the
Borrower's obligations under this credit facility will rank pari passu with all
other obligations. This provision shall not apply to any existing liabilities to
the extent of the security already provided.
Furthermore, the Borrower shall not grant any security in the above-mentioned
manner in favour of any third parties, if the Borrower is part of a group, it
shall not grant any security in favour of any companies controlled directly or
indirectly by it and/or any third parties. The Borrower shall moreover ensure
that and companies controlled directly or indirectly by it do not grant any
security in the above-noted manner in favour of any third parties or any other
companies controlled directly or indirectly by it. This provision shall not
apply to security provided for obligations arising under this Credit Agreement.
12. INFORMATION UNDERTAKING
For the entire term of this Credit Agreement, the Borrower undertakes to provide
the following information to UBS:
1) one copy of the balance sheet and profit and loss statement, including any
appendices, together with the auditor's report, by no later than four months
following the close of the fiscal year (separate and consolidated).
2) one copy of the budget, including the investment budget, by no later than 30
calendar days prior to commencement of the relevant fiscal year.
The Borrower undertakes, for the entire term of this credit facility, to
immediately inform UBS of any material changes, in particular of the occurrence,
or likely occurrence, of any circumstances which might constitute grounds for
extraordinary termination.
13. CONDITIONS PRECEDENT
No utilisation may be drawn down until all copies of the documents listed below
have been received by UBS, executed in the required form, and UBS has received
the agreed security in legally valid form:
- - one copy of this Credit Agreement
In the event that UBS has not received all of the documents and/or security, in
the required form, within one month of the date of execution of this Credit
Agreement, UBS shall be authorized to rescind this Credit Agreement without
granting any extension of the deadline for receiving the said documents and/or
security.
14. MISCELLANEOUS PROVISIONS
14.1 GENERAL CONDITIONS
The <<General Conditions>> of UBS shall form an integral part of this Credit
Agreement.
15. TRANSFER
UBS shall have the right to offer for transfer, or to transfer, in whole or in
part, its rights under this Credit Agreement, including any security provided in
respect of the credit facility, such as mortgage notes and any other security,
to any third parties in Switzerland or abroad. UBS may at any time provide all
third parties, including rating agencies, which may be parties to such transfer,
with access to all information and data relevant to the transfer, and shall be
exempted in this regard from the statutory obligation to maintain banking
secrecy. Insofar as third parties are not subject to Swiss legislation on
banking secrecy, information and data shall only be disclosed if the said
parties undertake to maintain secrecy and, in turn, ensure that this obligation
is binding upon any further contracting parties.
All assignees shall be entitled to reassign the rights acquired, provided that
each subsequent assignee also undertakes to maintain secrecy. UBS (and any party
acquiring rights as a result of any transfer made in accordance with this
Clause) may, without having to obtain consent from the Borrower, assign any
limit obligation agreed under this Credit Agreement, and/or any other
obligations arising hereunder, to the assignee in respect thereof, together with
any claims under the credit granted. Any party acquiring such obligations must
either be a company affiliated with UBS, or a Swiss or foreign financial
institution (bank, insurance company, or similar). UBS shall be released from
any obligation to the extent that it transfers save.
16. WAIVER OF SET-OFF
The Borrower waives its right to offset its obligations against any claims it
may have against UBS and/or any party acquiring rights under this Credit
Agreement, even if such claim by way of set-off against UBS, or any party
acquiring rights hereunder, may not be recoverable as a result of insolvency or
over-indebtedness.
17. APPLICABLE LAW AND JURISDICTION
This Credit Agreement shall be exclusively governed by and construed in
accordance with SWISS LAW. The place of performance, the place of debt
collection (only for persons domiciled outside of Switzerland) and the EXCLUSIVE
PLACE OF JURISDICTION for all disputes arising out of and in connection with
this Agreement shall be BERN. UBS shall, however, be entitled to commence legal
action against the Borrower before the competent authority at the place of its
registered office, or before any other competent authority, in which event Swiss
law shall continue to apply exclusively.
This Agreement was executed in two original copies.
Ref. P42M-SVM UBS AG
Bern, 17th August 2004 /s/ Norbert Schacht /s/ Katja Schmidt-Zaringer
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Norbert Schacht Katja Schmidt-Zaringer
AGREED
BORROWER MGI LUXURY GROUP S.A
/s/ Biel, August 20, 2004 /s/ K. BURRI /s/ E. KURTOLLU
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Signatures(s)
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