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CONFIDENTIAL
TREATMENT REQUESTED: Certain portions of this document have been
omitted pursuant to a request for confidential treatment and, where
applicable, have been marked with an asterisk
(“[****]”) to denote where omissions have been made.
The confidential material has been filed separately with the
Securities and Exchange Commission.
[Note: This
exhibit filing is a translation of the original German language
version letter agreement]
Deutsche Bank
Luxembourg S.A.
International Loans & Agency Services
Luxembourg
vorab per Email
Fax: +3524212295771
Bitterfeld-Wolfen, 9. April 2009
Waiver to
suspend the endowment of the debt servicing account according to
the Syndicated Loan Agreement dated 30.04.2007 in the Edition of
Addendum Nr. 1 date 22.05.2007 and Addendum Nr. 2 dated
01.09.2007 (“Loan Agreement”) dated 01.01.2009 until
30.06.2009 as well as suspending of all amortization payments until
30.06.2009 under the Loan Agreement before and including
31.03.2009.
We hereby
request the issuance of the following waiver in consideration of
the protocol of the Syndicate Bank meeting of March 24, 2009
enclosed in Appendix 1 as well as the letter of the
agent, Deutsche Bank Luxembourg S.A., dated March 31, 2009,
enclosed in Appendix 2 under the terms listed in points
(a) through (h) and providing that the explanations and
modifications agreed in the meeting with the lead Syndicate Bank on
April 7, 2009 under point 2 of the protocol enclosed as
Appendix 3 :
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1.
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The
Banks suspend the obligation Sovello AG to endow the debt servicing
account (EUR 25 mil) per 01.01.2009 until 30.06.2009, without
waiving the rights resulting from the violation of this contractual
obligation.
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2.
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The
banks defer all repayments under the Loan Agreement up to and
including 31.03.2009 until 30.06.2009, without waiving the rights
resulting from the violation of this contractual
obligation.
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3.
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The
banks prolong until 30.06.2009 the interest fixings payable until
30.06.2009 with same-day fixing. The margin is increased to 300bps
until the completion of the financing negotiations.
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The aim is to
work out a restructuring for the entire Sovello AG financing by
30.06.2009.
We confirm that
all of the obligations concerning fulfillment of the contract
documents are being met by Sovello AG with the exception of the
following contract violations as described in this
letter.
May we ask you
to issue the requested waiver providing that the obligations under
the following points (a) through (f) are fulfilled,
whereby the waiver is issued on the resolving condition that the
obligations of one or more Shareholders of Sovello AG or Sovello AG
itself under points c), d), e) and f) are not fulfilled within the
period stipulated and the effect of the resolving conditions does
not occur at the time of issuance of the waiver but at the moment
of first occurrence of a resolving condition:
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a)
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Sovello AG will appoint an external
consultant to compile of a continuation report. . The extent of the
report will be quantified in a separate scope of work. The
consultant shall be mandated as a previously noninvolved, neutral
third party, meaning that the current auditor of Sovello AG,
Deloitte & Touche GmbH may not be considered. In the meantime
we have commissioned PwC Price Waterhouse Coopers AG chartered
accountants (following “PwC”) with the compilation of a
continuation report.
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