FACILITY AGREEMENT
The undersigned:
I. COOPERATIEVECENTRALE RAIFFEISEN-BOERENLEENBANK B.A., established at
Amsterdam, The Netherlands, and also maintaining a business office in Utrecht,
hereinafter referred to as " Rabobank International";
and
II.
a. INBRAND EUROPE B.V., established at Goirle, The Netherlands,
hereinafter also referred to as "Inbrand Europe",
b. IN BRAND BENELUX B .V., established at Goirle, The Netherlands,
c. COMFORTA HEALTHCARE LTD, established at Worcester, United Kingdom.
d. INBRAND FRANCE S.A., established at Wasquchal, France,
e. INBRAND ESPANA SL, established at Barcelona, Spain,
which entities shall also be referred to both jointly end severally as the
"Borrowers", unless this Facility Agreement provides otherwise;
have agreed as follows:
Rabobank International hereby grants to the Borrowers a credit facility, which
the Borrowers hereby accept, subject to the following conditions.
ARTICLE 1 DEFINITIONS
For the purpose of this Facility Agreement, the following terms shall have the
meaning ascribed to them below:
(a) Advance(s): cash advance amounts paid by Rabobank International to the
Borrowers under the Facility in US Dollars and/or other convertible (foreign)
currencies to be agreed between the parties, for a period of 1, 2, 3, 6 or 12
month(s). payable in amounts of no less than US $ 200,000 (two hundred thousand
United States Dollars) or the corresponding value in Alternative Currency to be
agreed upon.
(b) Business Day: any day on which Dutch banks are open for business and
transactions between banks are carried on in Amsterdam and/or any other place
where acts are performed to comply with obligations under this Facility
Agreement.
(c) Facility: a credit facility up to a maximum amount of US. $ 15,000,000--
(fifteen million United States Dollars) or its corresponding value in Dutch
Guilders, French Francs, German Marks, British Pounds and Spanish Pesetas,
hereinafter referred to as: "Alternative Currency", provided that such
currencies are available to Rabobank International.
(d) Inbrand Corporation: a Georgia corporation with its chief executive office
and principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇. (e) LIBOR: London Interbank Offered Rate, the interest rate offered to the
banks in the London Interbank Market for deposits of comparable amounts
denominated in the same currency and of corresponding tenors.
(f) Rabobank Base Rate: the Rabobank base rate ("basisrente") as published from
time to time by Rabobank International in one or more Dutch national
newspapers.
(g) Termination Date: three years after the date of execution of this Facility
Agreement, unless earlier termination or any extension thereof has been
mutually agreed upon.
(h) Availability period: period of three years after the date of execution of
this Facility Agreement and ending on the Termination Date, unless earlier
termination or any extension thereof has been mutually agreed upon.
ARTICLE 2 PURPOSE/AVAILABILITY
1. Without prejudice to the provisions set out in Article 12 and 13, the
Facility shall be available to the Borrowers from the date of execution of this
Facility Agreement till the Termination Date.
2. At the Termination Date all amounts outstanding under the Facility will be
immediately due and payable
3. The Borrowers may only use the Facility within the normal conduct of their
business.
4. Upon at least fourteen ( 14) days prior written notice to Rabobank
International the Borrower may, at its option, terminate this Facility
Agreement. If termination by the Borrower is to be effective on such a day, the
Borrower shall pay to Rabobank International the outstanding principal, accrued
interest and other charges owing under the terms of this Facility Agreement.
ARTICLE 3 CONDITIONS PRECEDENT
The obligation of Rabobank International to make advances is subject to the
condition precedent that Rabobank International shall have received:
(a) a guaranty, duly executed by Inbrand Corporation (the Guarantor). in form
and substance acceptable to Rabobank International in its sole discretion (the
Guaranty);
(b) copies of all resolutions, authorizations, approvals, consents, licenses
and Iegalisation, if any. necessary or appropriate for entering into and any
performance under this Facility Agreement by the Borrowers as well as copies of
all resolutions, authorizations, approvals. consents. licenses and
Iegalisation, if any, necessary or appropriate for entering into and any
performance under the Guaranty;
(c) copies certifying the names and true signatures of the officers of the
Borrowers and the Guarantor authorized to sign the documents.
ARTICLE 4 USE
1. The whole or any part of the Facility may be administered in one or more
accounts in the books of Rabobank International, in United States Dollars
and/or in Alternative Currency .
2. Under the terms of the Facility, the Borrowers may during the Availability
period:
(a) make the usual withdrawals from the account(s) referred to in paragraph
1 of this Article;
(b) have Rabobank International issue guarantees and open letters of credit
and assume similar obligations for the Borrowers' account on such conditions as
the Bank may determine and subject to a maximum term of 12 months;
(c) withdraw Advances on such conditions as will be determined in greater
detail.
The aggregate amount of the debit balance of the account(s) and the issued by
Rabobank International, outstanding Advances and other obligations assumed by
Rabobank International at the request or for the account of the Borrowers shall
at no time exceed the maximum amount of the Facility.
3. For the purpose of determining the amount available under the Facility the
corresponding United State dollar value of amounts withdrawn in other
currency shall be calculated on the basis of the respective (informative)
buying and selling rates on the Amsterdam exchange market as quoted by De
Nederlandsche Bank N.V. each Business Day.
4. Rabobank International shall debit the Borrowers' account(s) with all the
withdrawals referred to in this Article, the amounts paid under guarantees
or other obligations assumed at the request and for the account of the
Borrowers within the meaning of this Article and all interest, fees and
costs.
ARTICLE 5 INTEREST
Current account
1.With regard to the part of the current account which is used in US Dollars or
Alternative Currency, both the debit and credit interest rates shall be
determined by Rabobank International on a weekly basis. The interest rates are
based upon the weekly interbank interest rate for the applicable currency
increased with the applicable margin dependent upon the Funded Debt/EBITDA
ratio as specified in the attached Schedule B. These rates shall not be changed
during the week in question, unless Rabobank International considers such a
change appropriate in view of market conditions. Rabobank International shall
forward to the Borrowers on a weekly basis a survey of the interest rates and
shall immediately notify the Borrowers of any change thereof
2.Interest on credit and/or debit balances in current account shall be
calculated quarterly in arrears. The interest shall be calculated as is
customary per currency (custom in respect of Dutch Guilders: month right/year
right).
Advances
1. The interest rate on Advances in US Dollars or Alternative Currency shall
be based on the LIBOR rate increased with the applicable margin dependent upon
the Funded Debt/EBITDA ratio as specified in the attached Schedule B.
2. Interest on Advances shall be due on the agreed maturity dates, unless
the tenor of an Advance is more than three months, in which case the interest
shall be due quarterly and on the agreed maturity date.
3. Interest on Advances shall be calculated per currency as is customary with
the Banks (custom in respect of Dutch Guilders: month right/year 360).
4. If the LIBOR rate is not published on the day interest is determined,
another interest indicator shall be used in mutual consultation.
Exceeding the Facility
If the maximum amount of the Facility is exceeded as a result of any interest
and/or costs being debited or for any other reason, Rabobank International may
charge an interest at a rate of 2% (two per cent) per annum over and above the
Rabobank Base Rate. This interest shall be calculated on the amount by which
the Facility is exceeded, commencing on the date on which the excess arose and
ending on the date on which it is undone, all of this without prejudice to the
Borrowers' obligation to make up the deficit immediately and without prejudice
to the rights of Rabobank International under Article 12 of this Facility
Agreement.
Late payment
In the event that the Borrowers fail to pay any amount in a timely fashion.
they shall owe Rabobank International extra interest at a rate of 1% (one per
cent) per month. This default interest shall be calculated on the amount still
payable by the Borrowers from the date the amount became due until the date of
actual payment. This provision shall not release the Borrowers from their
obligation to comply with their obligations and shall not affect the banks'
rights under Article 12 of this Facility Agreement.
ARTICLE 6 FEES AND COSTS
1. With effect from the date of signing this document the Borrowers shall pay a
commitment fee calculated on the average unused balance of the commitment
amount. The applicable rate of the commitment fee shall depend upon the Funded
Debt/ EBITDA ratio as specified in the attached Schedule B. This fee shall he
charged in arrears on the last day of each calendar quarter and on the
Termination Date and shall be calculated on the basis of a month having 30 days
and a year having 360 days.
2. Rabobank International shall charge all the customary fees for the
guarantees it issues or other obligations it assumes at the request and for the
account of the Borrowers hi accordance with the provisions of Article 4.
3. All fees due and payable by the Borrowers shall be calculated quarterly in
arrears. unless the parties have agreed otherwise.
4. The Borrowers shall pay all the costs associated with the conclusion and
performance of this Facility Agreement and all collection costs arising when
the Facility is claimed back. Collection costs shall also include the internal
and external costs of legal assistance, the costs of litigation and the costs
of experts and other third parties.
ARTICLE 7 ADVANCES
1. If the Borrowers intend to withdraw an Advance in Dutch Guilders. they shall
notify Rabobank International no later than on the date of withdrawal. before
11.00 a.m. Amsterdam time, and if they intend to withdraw an Advance in US
Dollars or in Alternative Currency other then Dutch Guilders, they shall notify
Rabobank International two Business Days prior to the date of withdrawal, no
later than at 10.00 a.m. London time. all of this in such a manner as Rabobank
International may determine and subject to a specification of the amount, tenor
and currency requested. This notification shall be irrevocable. Rabobank
International shall confirm the terms and conditions of the Advances, including
the interest rate determined by Rabobank International, to the Borrowers in
writing.
2.If the Borrowers wish to take an Advance in US Dollars or Alternative
Currency and, on the requested date of withdrawal. Rabobank International
establishes that the currency requested is unavailable as a result of certain
circumstances on the Interbank Market(s), Rabobank International shall cease to
be under an obligation to pay the Advance in the currency requested. Rabobank
International shall promptly notify the Borrowers. who shall then be entitled
to withdraw Advances in other (freely convertible foreign) currency, with due
observance of the provisions set out in paragraph I of this Article.
3.Advances shall be paid by means of crediting the account held by the
Borrowers with Rabobank International. The value date shall be the date on
which Rabobank International placed the Advances at the Borrowers' disposal.
The credit entry shall constitute conclusive evidence of the Borrowers'
indebtedness.
4.The Borrowers shall promptly sign for approval and return to Rabobank
International a copy of the confirmation letter referred to in paragraph I of
this Article. Any failure to return the confirmation letter promptly shall be
construed as the Borrowers' unconditional agreement with the letter.
5.The principal, interest and costs owed by the Borrowers to Rabobank
International by virtue of the Advances extended shall be (re)paid on the due
date. Upon (re)payment, the Borrowers' account with Rabobank International
shall be debited with the relevant amounts, and the Borrowers hereby
unconditionally and irrevocably authorise Rabobank International to so proceed,
all of this without prejudice to the Borrowers' obligation to pay the
outstanding amount in full and on time in the event of an insufficient balance.
6.The Borrowers are allowed to prepay Advances in whole or in part, provided
that they have notified Rabobank International in writing of their intention no
later than ~ Business Days prior to such a day. In such case the Borrowers
shall compensate Rabobank International for the funding-losses.
7. Advances shall be paid on the due dates and in the same currency as the
one in which they were withdrawn.
ARTICLE 8 PLURALITY OF DEBTORS
1. Each of the Borrowers shall be Jointly and severally liable to Rabobank
International for any and all amounts which Rabobank International may claim in
connection with or under the Facility.
2.The Borrowers hereby waive all the rights, privileges and defenses conferred
by law upon joint and several co-debtors and shall, at the first request of
Rabobank International, pay any and all claims from Rabobank International in
connection with or under the Facility extended to one or more of the Borrowers
which arc party to the present Facility Agreement.
3. Each of the Borrowers hereby subordinates all present and/or future claims
which they may have against other jointly and severally liable Borrowers on the
grounds of recourse and/or subrogation to all present and/or future claims
which Rabobank International may have - on whatever ground - against the other
jointly and severally liable Borrowers. which means that the jointly and
severally liable Borrowers shall not file any claim for recourse and/or
subrogation until Rabobank International has been paid in full.
ARTICLE 9 PAYMENT
The Borrowers shall pay Rabobank International all amounts due under this
Facility, without invoking any suspension, deduction, discount, offset and/or
counterclaim, at such a place as Rabobank International may indicate. If any
due date is not a Business Day, the due date shall be the next Business Day,
interest shall be calculated over the extra day or days.
ARTICLE 10 ORDER OF PAYMENTS
All payments received by Rabobank International from the Borrowers under this
Facility Agreement shall be used to reduce the amounts owed under this Facility
Agreement and are considered to be first for pay costs and damages. then for
fccs7 extra interest and interest and, finally, to repay the principal.
ARTICLE 11 OFFSETTING CLAIMS
1.All the Borrowers' accounts with Rabobank International, irrespective of
their nature or the currency in which they are denominated, shall be considered
to be one and the same account.
2. Rabobank International shall at all times be entitled to set off any and
all amounts due and payable by the Borrowers under the Facility against any
and all claims which the Borrowers may have against Rabobank International.
regardless of whether or not they arc due. For the purpose of this clause,
obligations expressed in foreign currencies shall be converted into Dutch
Guilders at the then current rates of the Amsterdam exchange market, based
on the (informative) buying and selling rates quoted by Dc Ncdcrlandschc
Bank N.V. on each Business Day. The Borrowers hereby grant an unconditional
and irrevocable power of attorney to Rabobank International to do all that
is necessary to effect the aforesaid set off.
ARTICLE 12 TERMINATION/EVENTS OF DEFAULT
1. If the availability of the Facility is not extended by Rabobank
International after expiration of the Availability period the Borrowers shall no
longer be entitled to make use of the Facility, all amounts outstanding under
this Facility Agreement on account of and/or in connection with outstanding
current account balances of principal together with interest, default interest.
fees and costs shall become immediately due and payable after this period by the
more lapse of time and shall be (re)paid promptly to Rabobank International In
such an event. the Borrowers shall also he under an obligation to ensure that
Rabobank International is released from its obligations ensuing from the
outstanding guarantees and/or the other obligations assumed by Rabobank
International under the terms of Article 4 at the Borrowers' request. Any
outstanding Advances shall become due and payable on the agreed due dates
thereof. however not later than on the Termination Date.
2. If any of the following events occur, Rabobank International shall be
entitled, upon written notification to the Borrowers, to terminate the Facility
with immediate effect:
(a) if the Facility and/or parts of the Facility is or are exceeded and
the deficit is not remedied within 14 days after the Borrowers having
been requested in writing to do so; -
(b) if Rabobank International has not received any amount due and payable
by the Borrowers to Rabobank International on account of or in
connection with this ' Facility Agreement within 14 days of a written
request to that effect;
(c) if the default in complying with any other obligation arising from this
Facility Agreement and/or from any other loan or credit agreement, whatever its
name, concluded with Rabobank International or any other lender;
(d) if any of the following events occur with regard to the Borrowers or
the Guarantor -or a third party who has provided security in relation to the
Facility:
if a pre-Judgment attachment is levied on a material part of the assets and the
attachment is not lifted or terminated within 30 days of the date of
attachment;
if a mayor change is made or obviously intended in the actual. direct or
indirect control over the Borrowers or the Guarantor or the third party in
question;
if there is a (intended) decision to demerge; in the event of a substantial
decrease in value or a cancellation of the security - if applicable - provided
to Rabobank International;
if any approval, exemption or permit required for the conduct of business by
the Borrowers is missing, canceled or revoked or if the relevant conditions are
violated.
3. The Facility shall be terminated forthwith and without prior notice from
Rabobank International to the Borrowers if any of the following events occur
with regard to the Borrowers or the Guarantor or a third party who has provided
security in relation to the Facility:
application for a suspension of payments;
voluntary or involuntary winding up;
proposal for a composition with creditors;
attachment ("executoriaal beslag") on a material part of the assets;
dissolution or actual liquidation;
discontinuation or actual termination of conduct of business;
loss of status as a legal entity;
filing of a notice as defined in Article 36 of the Invorderingswet
1990 (Tax Collection Act) or Article 16d of the Coordinatiewet
Sociale Verzekeringen (Social Insurance Coordination Act).
4. Moreover the Facility shall be terminated forthwith and without prior notice
from Rabobank International to the Borrowers if the Guarantor is unable to
maintain the financial covenants as mentioned hereunder and as specified in the
attached Schedule C. The covenants shall be determined on a consolidated basis
in respect of the Guarantor.
(i) a consolidated Current Ratio of not less than 1.25 to 1.0
(ii) a consolidated Adjusted Tangible Net Worth of not less than the amount
shown below for the fiscal periods corresponding thereto:
Period Amount
------ ------
- as of the last day of each of the first three
fiscal quarters of 1997 $30.000.000
- as of the last day of the 1997 fiscal year and the last day of $35.000.000
each the first three fiscal quarters of 1 99t's fiscal year
- as of the last day of the 1 99Es fiscal year and the last day of $40.000.000
each he first three fiscal quarters of 1999 fiscal year
- as of the last day of each fiscal quarter thereafter and as of $45.000.000
the last day of each fiscal year thereafter
(iii) a ratio of total consolidated indebtedness to consolidated Adjusted
Tangible Net Worth of not greater than the ratio 2.50 to 1.0 through
the last day of the Guarantor's 1997 fiscal year and 2.25 to 1.0 as of
the last day of each fiscal quarter and fiscal year thereafter
(iv) as of the last day of each fiscal quarter for the four fiscal quarters
then ending a consolidated Funded Debt/EBITDA Ratio of not less than 3 to 1.0
(v) as of the last day of each fiscal quarter for the four fiscal quarters then
ending a Consolidated Fixed Charge Coverage Ratio of not less than 1.5 to 1.0
If the Guarantor fails to act within the Financial Covenants, the parties to
this Facility Agreement will consider about the possible consequences thereof
for the (re)payment of the outstanding amount and current interest on the
Facility If the Parties do not agree within three months. Rabobank
International shall be entitled to terminate the Facility Agreement forthwith.
without any notice of default or court intervention being required
The terms "Acquisition Factor", "Adjusted Net Earnings", "Adjusted Tangible
Assets", "Adjusted Tangible Net Worth", "Current Assets", "Current
Liabilities", "Current Ratio". "EBITDA", "Fixed Charge Coverage Ratio", "Funded
Debt". "Funded Debt/EBITDA Ratio", "GAAP" and "Make Capital Expenditures" arc
applicable to this Agreement and shall have the meaning as described in the
Amended and Restated Loan Agreement. Section 1 "General Definitions", made as
of October 1, 1996, by and between Southtrust Bank of Georgia, N A and Inbrand
Corporation Such definitions may be amended from time to time with subject to
the prior written consent of Rabobank International. unless parties to this
Agreement have explicitly agreed upon otherwise If the Facility is terminated
pursuant to paragraph 2, 3 or 4 of this Article, any and all amounts owed by
the Borrowers on account of or in connection with this Facility Agreement in
terms of principal. interest, extra interest, fees, damages and costs shall
become ' immediately due and payable in full, without any notice of default or
court intervention being required If any event of default occurs as defined in
paragraphs 2, 3 and 4 of this Article. the Borrowers shall be under an
obligation to immediately repay the outstanding debit balance and the Advances
withdrawn, as well as accrued interest, extra interest, fees and costs and.
with regard to the Advances extended, and with regard to Advances extended a
charge for any funded losses incurred by Rabobank International
ARTICLE 13 CHANGES IN THE CONDUCT OF BUSINESS
1. The Borrowers undertake to submit to Rabobank International -as far as this
information does not appear from the so-called quarterly " 10-Q reports" and as
far as the providing of such information does not conflict with (government)
regulations- in advance any intended decision or intended amendment to the
Articles of Association resulting in a major change in the conduct of their
business or their financial circumstances and any intended decision to merge
with one or more third parties or take over one or more third parties
2. If Rabobank International so request, the Borrowers shall not make the final
decision as referred to in paragraph 1 of this Article until the parties to
this Facility Agreement have considered about the possible conscqucnccs thereof
for the (re)payment of the outstanding amount and current interest on the
Facility
3. Following an intention as referred to in paragraph 1 of this Article,
Rabobank International shall be entitled to stipulate reasonable conditions
as security for the Borrowers' compliance with the obligations under this
Facility Agreement If the Borrowers do not agree with these conditions.
Rabobank International shall be entitled to terminate the Facility
Agreement forthwith, without any notice of default or court intervention
being required The provisions set out in paragraphs 1, 4 and 5 of Article
12 shall apply equally
ARTICLE 14 FINANCIAL INFORMATION
As long as the Borrowers have any obligation to Rabobank International under
this Facility Agreement they shall, within six months of the end of each
financial year, provide Rabobank International with their annual (consolidated)
financial statements for the past financial year, as audited by an independent
auditor. Furthermore, the Borrowers shall be under an obligation to provide on
a quarterly basis, within 45 days of the end of each quarter, to Rabobank
International the so-called "l0-Q reports"
ARTICLE 15 NEGATIVE PLEDGE
1 The Borrowers hereby undertake vis-a-vis Rabobank International that as
long as the Facility or any part thereof remains outstanding or any
other sum is payable under this Facility Agreement. it shall not
without the prior written consent of Rabobank International
(a) create or permit to subsist any charge. mortgage, pledge, security
interest or any other right of a third party in respect of (i) any of its
present or future property, and/or (ii) any of its present or future other
assets.
(b) sell, barter or otherwise alienate (including. without limitation.
through any sale- and Ieaseback transaction. factoring agreements and other
off-balance transaction ) any of its property or other assets, except for a sale
or transfer for full value in the normal course of business of assets as
mentioned under (a)(ii); guarantee or incur liability in any other way for the
obligations and/or debts of third parties, whether due or not due. absolute or
contingent
2 As far as point l(a) and (b) concerns an exception will be made for
transactions, on a yearly basis, not exceeding the amount of USD 150.000
(one hundred fifty thousand United States Dollars in total)
3 The Borrowers undertake vis-a-vis Rabobank International to procure that
none of its present or future subsidiaries or companies in which the
Borrowers hold or will hold the majority of the shares. will create any
security interest or incur liability as described in paragraph I hereof
and that such subsidiaries or companies shall accept the foregoing as
their own obligation Secured debts which already existed at the time of
acquisition of such a subsidiary will be respected by Rabobank
International
4 In the event that the Borrowers will, after having obtained the written
consent of Rabobank International thereto, grant a security interest to
other creditors for any present and/or future obligations, the Borrowers
shall at the same time grant a security interest to Rabobank
International for all present and/or future indebtedness and obligations
of the Borrower to Rabobank International, whether for principal,
interest or otherwise. which security interest shall rank at least
equally with the security interests granted to such other creditors and
which shall provide for at least the same coverage as granted to such
other creditors
ARTICLE 16 ACCESSION
1. Rabobank International hereby agrees in advance that:
(a) one or more jointly and severally liable borrowers may accede
to this Facility Agreement and accept its teams and
conditions, provided that an acceding borrower is designated
by Inbrand Europe as one of its subsidiaries and is
considered to be acceptable by Rabobank International;
The undersigned, under IIb up to and including IIe, hereby grant an
unconditional and irrevocable power of attorney to Inbrand Europe, who hereby
accepts this power of attorney, to accept (also on their behalf) the accession
to the Facility Agreement of one or more other jointly and severally liable
borrowers.
ARTICLE 17 CHANGE OF CIRCUMSTANCES
1. If any instructions or regulations issued by the governmental authorities
and/or De Nederlandsche Bank N.V. have a cost-increasing impact on the
obligations of Rabobank International under the Facility, Rabobank
International shall notify the Borrowers as soon as possible. The Borrowers
shall pay such additional costs at first request of Rabobank International and
be entitled to repay the outstanding amount of the Facility subject to
compensation for the losses of Rabobank International. If in such event
Rabobank International is looking for adjusting the Facility. the Borrowers
have the right to terminate this Facility Agreement after a period of three
months, during which period the Facility will be unchanged. At the end of this
period all outstandings shall be repaid in conformity with Article 12 clause 1.
2. If the Borrowers are required by law to deduct or withhold an amount from
any payment under this Facility Agreement, the Borrowers shall pay Rabobank
International such an additional amount that Rabobank International will
receive the same amount as they would have received without the deduction
or withholding.
ARTICLE 18 COMMUNICATIONS
Unless specifically provided otherwise, all notices and communications relating
to this Facility Agreement shall be made to the addresses listed below:
To Rabobank International:
Coopcratieve Centrale Raiffcisen-Bocrcnlccnbank B.A.
P. O. ▇▇▇ ▇ ▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
To the Borrowers:
Inbrand Europe B.V.
P.O. Box 272
5050 AG Goirle
ARTICLE 19 MISCELLANEOUS
1. Rabobank International may set other interest calculation methods if,
for instance, the present methods cease to be available.
2. For the purpose of this Facility Agreement. Rabobank International
elects as her domicile the office at ▇▇▇▇▇▇▇▇▇▇] ▇▇, ▇▇▇▇▇▇▇, and the Borrowers
elect as their domicile the office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇.
3.The Borrowers represent that they are subsidiaries of Inbrand Europe and
that each of them has an economic interest in the availability of the Facility.
4. This Facility Agreement and its performance shall be governed by the
laws of the Netherlands.
5. Any dispute between the parties concerning the performance of this
Facility Agreement shall be brought before the competent court in the
Netherlands, without prejudice to the right of Rabobank International to take
legal action in any other jurisdiction.
6. The Borrowers represent that the conclusion of this Facility Agreement
shall not constitute a violation of any other obligation entered into by them.
7.Any amendment to this Facility Agreement shall be made in writing and
with the parties' mutual consent.
8.The Borrowers shall not be entitled to assign or pledge their rights
under this Facility Agreement to any third party.
9.The invalidity of any clause included in this Facility Agreement shall
not render the entire Facility Agreement void.
10. Any failure by either party to exercise any right under this Facility
Agreement shall not be construed as a waiver or forfeiture of such a right.
11. Rabobank International may invoke the provisions set out in this
Facility Agreement as long as they have or may obtain any claim against the
Borrowers under this Facility Agreement.
12.Without prejudice to the provisions set out above. the "Borrowers" shall
also be understood to mean the jointly and severally liable borrowers, both
individually and collectively. who have joined this Facility Agreement pursuant
to Article 16.
13.Unless the parties have expressly provided otherwise in this Facility
Agreement. the offering letter of October 17. 1996, reference PDB/o961744, as
accepted by the Borrowers with regard to this Facility Agreement, shall apply in
full to this Facility Agreement.
14. Unless the parties have expressly provided otherwise, this Facility
Agreement shall also be governed by the General Terms and Conditions applicable
to transactions between Cooperatieve Centrale Raiffeisen-Boerenieenbank B.A. or
its member banks and the customers of Cooperatieve Centrals
Raiffeisen-Boerenieenbank B.A.. as filed with the Registry of the Amsterdam
District Court. The Borrowers declare that they have received a copy of said
General Terms and Conditions and have taken due note of the contents thereof
(Schedule D)
Executed in twofold at Utrccht dated January 16. 1997.
I. COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK ▇.▇.
▇▇.a. INBRAND EUROPE B.V.
II.b. INBRAND BENELUX B.V.
II.c. COMFORTA HEALTHCARE LTD
II.d. INBRAND FRANCE ▇.▇.
▇▇.e. INBRAND ESPANA SL
SCHEDULE A
ACCESSION AGREEMENT
THE UNDERSIGNED:
I. C'OOPERATIEVE CENTRALE RAIFFEISEN-CENTRALE BOERENL.EENBANK B.A
established at Amsterdam and also maintaining a business office
in Utrccht,hcrcinaftcr referred to as: Rabobank International;
II. INBRAND EUROPE B.V.,
established at Goirle,
hereinafter referred to as: Inbrand Europe;
III. *, established at *, hereinafter referred to as:
Co-Borrower,
WHEREAS:
Rabobank International and Inbrand Europe and its subsidiaries,
(hereinafter jointly as well as severally referred to as: the Borrowers) have
entered into a Facility Agreement dated January 16, 1997 (hereinafter referred
to as: Facility Agreement) relating to a facility in the maximum aggregate
amount of USD 15,000,000-- (fifteen million United States Dollars) or the
corresponding value in Alternative Currency (hereinafter referred to as:
Facility);
pursuant to Article 16 of the Facility Agreement one or more Co-Borrower(s)
man enter into the Facility Agreement;
the Co-Borrower is a subsidiary of Inbrand Europe and has an economic
interest to enter into the Facility Agreement;
HAVE AGREED AS FOLLOWS:
1. The Co-Borrower hereby enters into the Facility Agreement. a copy of which
has been attached to this Accession Agreement, and herewith undertakes to
comply with its terms and conditions and accepts the benefit of such terms and
conditions.
2. Rabobank International has opened a current account in the name of the
Co-Borrower in its administration under number * which current account will
be subject to the Facility.
3. The Co-Borrower herewith grants to Rabobank International without limitation
any and all rights and powers vested on Rabobank International as mentioned in
the Facility Agreement.
4. The Joint and several liability of the Co-Borrower as mentioned in Article 8
of the Facility Agreement will serve, among others, as a security for any
present and future claims under the Facility Agreement which Rabobank
International may now or in the future have on any of the Borrower, which have
already entered into the Facility Agreement of which may in the future enter
into the Facility Agreement.
5. The Co-Borrower herewith and irrevocably authorizes Inbrand Europe to
accept other co-borrowers on its behalf as a party to the Facility
Agreement.
6. Inbrand Europe confirms that the Co-Borrower is a subsidiary of Inbrand
Europe, and herewith unconditionally and irrevocably accepts on its own behalf
as well as on behalf of the Borrowers the accession of the Co-Borrower to the
Facility Agreement as one of the jointly and severally liable Borrowers and the
rights and obligations arising from aforesaid accession.
7. Rabobank International herewith unconditionally and irrevocably accepts the
accession of the Co-Borrower to the Facility Agreement as one of the Jointly
and severally liable Borrowers and the rights and obligations arising from
aforesaid accession.
8. Unless the parties have expressly provided otherwise. this Facility
Agreement shall also be governed by the General Terms and Conditions applicable
to transactions between Coopcraticvc Ccntralc Raiffciscn-Bocrcniccnbank B.A. or
its member banks and the customers of Coopcraticvc Ccntralc
Raiffciscn-Bocrcniccnbank B.A., as fiend with the Registry of the Amsterdam
District Court. The Co-Borrower herewith declares to have received a copy of
these General Conditions and to have taken due notice of these General
Conditions.
Signed in threefold at * on *
Rabobank International:
I. COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
Inbrand Europe:
II. INBRAND EUROPE B.V.
Co-Borrower
III. *
SCHEDULE NOT TO BE SIGNED
SCHEDULE B
For purposes of determining the LIBOR margin and the commitment fee the ratio
of Funded Debt to EBITDA based in the second preceding quarterly period (e.g.
the LIBOR margin for the 3rd quarter shall be determined based on the Funded
Debt to EBITDA ratio as of the end of the 1st quarter) consolidated financial
statements of Inbrand Corporation shall be used according to the following
table:
Funded Debt to EBITDA Margin LIBOR (p.a.) Commitment Fee (p.a.)
< 1.50 0.50% 0.250%
1.50 - < 2.0 0.75% 0.300%
2.00 - < 2.25 1.00% 0.300%
2.25 - < 2.50 1.25% 0.300%
2.50 - < 3.00 1.50% 0.425%
3.00 - < 3.25 1.75% 0.425%
3.25 - > 3.25 2.00% 0.425%
SCHEDULE C
Financial covenants
Computed at least quarterly and based on financial statements and compliance
certificates provided by the Borrowers and the Guarantor and using GAAP
definitions.
Fiscal Quarter and Year Ending
1996 1997 1998 1999 and later
Minimum current ratio 1.25 1.25 1.25 1.25
Minimum adjusted tangible
not worth (millions) $ 30 $ 35 $ 40 $ 45
Maximum debt to adjusted
tangible net worth 2.50 2.50 2.25 2.25
Minimum fixed charge
coverage ratio* 1.50 1.50 1.50 1.50
Maximum annual capital
expenditures (millions) $ 27 $ 27 $ 30 $ 30
Maximum funded debt/
EBITDA 3.0 3.0 3.0 3.0
* (calculation: (net income + interest expense + lease expense + depreciation +
amortization)/ (current maturities funded debt + interest
expense + lease expense)
GUARANTY
THIS GUARANTY AGREEMENT is made January 16, 1997 by and between
I. INBRAND CORPORATION, organized under the laws of the state of Georgia,
the United States, hereinafter referred to as: the "Guarantor"
and
II . COOPERATIEVE CENTRAEE RAlFFEISEN-BOERENLEEN BANK B.A. incorporated
under the laws of the Netherlands with its registered office at Amsterdam,
The Netherlands, hereinafter referred to as: "Rabobank International"
WHEREAS
Rabobank International will grant to INBRAND EUROPE B.V. and its European
subsidiaries, hereinafter Jointly and severally referred to as: "Borrowers", a
facility up to a maximum aggregate principal amount of US $ 15,000,000--
(fifteen million United States Dollars) or its corresponding value in freely
convertible other currency subject to availability thereof to Rabobank
international, such currency hereinafter referred to as:"Alternative Currency"
, subject to the terms and conditions as set forth in the Facility Agreement
dated as of January 16, 1997, as amended, varied, novated and/or supplemented
from time to time, hereinafter referred to as "Agreement".
It is a condition precedent for the availability of the Agreement that the
Guarantor has issued an unconditional and irrevocable guaranty in favour of
Rabobank International guaranteeing the indebtedness of the Borrowers due under
the Agreement, such guaranty under the respective terms and conditions as set
forth below and hereinafter referred to as the "Guaranty".
HAVE AGREED AS FOLLOWS:
ARTICLE 1
The Guarantor hereby unconditionally and irrevocably guarantees and promises to
pay to Rabobank International on first demand and without further proof of
indebtedness by Rabobank International, in the same currency as the
indebtedness, any and all indebtedness of the Borrowers under the respective
terms and conditions of the Agreement. The amount thus to be paid by the
Guarantor to be increased with statutory interest ("wettelijke rente ') at that
time applicable, as from the date of payment of the same by Rabobank
International until the date of payment by the Guarantor. The Guarantor
declares to have taken due notice of the Agreement and to accept the terms and
conditions thereof The word "indebtedness" is used herein in its most
comprehensive sense and includes, without limitation, any and all advances,
interest, costs or other charges, debts, obligations and liabilities of the
Borrowers, heretofore, now, or hereafter made, direct, incurred or created,
whether voluntary or involuntary and however arising, whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
and whether recovery upon such indebtedness may be or hereafter become barred
by any statute of limitations, or whether such indebtedness may be or hereafter
become otherwise unenforceable.
ARTICLE 2
I. The liability of the Guarantor under this Guaranty shall not exceed at
any time the sum of US $ 15,000,000-- (fifteen million United States
Dollars), for principal to be increased with all interest, fees, costs,
expenses upon the indebtedness or upon such part of principal of the
indebtedness as shall not exceed the foregoing limitation.
2. Notwithstanding the foregoing, Rabobank International may permit the
indebtedness of the Borrowers to exceed Guarantor's liability. This is a
continuing guaranty relating to any indebtedness under the Agreement in
accordance with its respective terms and conditions, including that
arising under successive transactions which shall either continue the
indebtedness or from time to time renew it after it has been satisfied.
ARTICLE 3
The obligations hereunder arc independent of the obligations of the Borrowers
and a separate action or actions may be brought and prosecuted against the
Guarantor whether action is brought against the Borrowers or whether the
Borrowers be joined in any such action or actions provided that Rabobank
International has sent prior to the claim of Rabobank International under the
Guaranty a written notice to the Borrowers that an event of default has
occurred in respect of the Agreement.
ARTICLE 4
1. The Guarantor hereby waives with respect to the indebtedness under the
Agreement: a. the privileges of excussion and apportionment as well as any
rights and privileges it may have generally and all other rights, pleas,
privileges and benefits of any statute of limitations affecting its
liability hereunder or the enforcement thereof; b. the benefit of order
established by law or otherwise in any applicable jurisdiction.
2. The Guarantor waives any right to require Rabobank International to
a. proceed against the Borrowers,
b. proceed against or exhaust any security held from the Borrowers;
c. pursue any other remedy in Rabobank International's power
whatsoever.
3. The Guarantor waives any defense arising by reason of any disability or
other defense of the Borrowers or by reason of the cessation from any
cause whatsoever of the liability of the Borrowers (other than by reason
of payment).
As long as any indebtedness exists, the Guarantor shall not exercise any
right of subrogation it may have, and waives any right to enforce any
remedy which Rabobank International now has or may hereafter have
against the Borrowers, and waives any benefit of, and any right to
participate in any security now or hereafter held by Rabobank
International.
4. The Guarantor agrees that its obligations hereunder shall be binding and
remain in force and effect, irrespective of the validity, regularity and
enforceability of the Agreement, the absence of any action to enforce
the same, the recovery of any judgment against the Borrowers or any
action to enforce the same, or any other circumstance that might
otherwise constitute a legal or equitable discharge or defense to
Guarantor, as long as any indebtedness exists, now and in the future.
ARTICLE 5
The Guarantor authorizes Rabobank International, without notice or demand and
without affecting its liability hereunder, but only with prior written consent
of the Borrowers, from time to time to
(i). amend the terms and conditions of the Agreement, more specially - but
not limited to - to renew, compromise, extend, accelerate or otherwise
change the time of payment of the indebtedness, including increase or
decrease of the rate of the interest thereon;
(ii). take and hold security for the payment of the indebtedness guaranteed
and exchange, conform. waive and release any such security,
(iii). apply such security and direct the order or manner of sale thereof
as Rabobank International in its discretion may determine.
ARTICLE 6
All payments made hereunder shall be made free without set-off, and clear off,
and without deduction for or on account of any present or future stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings of
any nature now or hereafter applicable. In the event that the Guarantor is
prohibited by law or otherwise from making such payments free of such
deductions or withholdings, the Guarantor shall pay such additional amounts to
Rabobank International as may be necessary in order that the actual amount
received by Rabobank International after all deductions or withholdings (and
after payment of such additional amounts) shall equal the amount that would
have been received by Rabobank International if no deduction or withholding
were required.
ARTICLE 7
The Guarantor represents and warrants that:
(i). It is a corporation duly organized and validly existing under the laws of
the state of Georgia, the United States of America and has full power and
authority to enter into, execute and deliver this Guaranty and to perform its
obligations hereunder. The issuance of this Guaranty by the Guarantor and
performance of its obligations hereunder have been authorized by appropriate
corporate action. The execution, delivery and performance of this Guaranty do
not and will not violate or contravene any provision of law, will not conflict
with the articles of incorporation or by-laws or other corporate documents, if
any, of the Guarantor and do not and will not conflict with or result in the
breach of any provision of any agreement to which the Guarantor or any of its
subsidiaries is a party.
(ii). Its obligations hereunder constitute direct and general obligations,
legally valid and binding and enforceable against the Guarantor according to
its terms which, now and at any time in the future, shall at least rank pari
passu in priority of payment and in all other respects with all other unsecured
and unsubordinated indebtedness of the Guarantor, present and future, other
than statutorily preferred obligations. Guarantor shall at all times comply
with and maintain the financial covenants as specified in the attached Schedule
A. The aforesaid covenants shall be determined on a consolidated basis with
respect to the Guarantor.
ARTICLE 8
As long as this Guaranty shall be in force and effect the Guarantor shall:
(i). maintain an accounting system in accordance with generally accepted
accounting principles in the United States of America consistently applied, and
shall cause each of its subsidiaries to maintain an accounting system in
accordance with generally accepted accounting principles in the jurisdiction in
which such subsidiary's principal place of business in located, consistently
applied.
(ii). as soon as available, but not later than 180 (one hundred and eighty)
days after the end of each fiscal year deliver to Rabobank International copies
of its annual consolidated financial statements, audited and certified by an
independent accountant. Furthermore, the Guarantor shall provide Rabobank
International with such other financial information which Rabobank
International may reasonably request from time to time.
ARTICLE 9
This Guaranty shall remain in force and not be discharged until all amounts due
under the and/or this Guaranty have been paid in full in accordance with
respective terms and conditions thereof. This Guaranty shall immediately he
enforceable if any representation or warranty made in this Guaranty shall at
any time prove to be incorrect in any material respect.
ARTICLE 10
Vis-a-vis the Guarantor the records of Rabobank International shall constitute
prima facie evidence of any claim under this Guaranty in respect of the
Agreement, such claim in accordance with their respective terms and conditions,
unless the Guarantor can prove to the contrary.
ARTICLE 11
Without prejudice to the other terms and conditions contained herein or in the
Agreement, the Guarantor acknowledges and agrees that if any event of default
occurs as set forth in the Agreement, the Agreement will immediately become due
and payable and this Guaranty becomes enforceable forthwith. The Guarantor
shall promptly give notice of the occurrence of any event of default or any
event that, with the giving notice or the passing of time, or both, would
constitute such event of default.
ARTICLE 12
All notices, requests, demands or other communications required or permitted to
be given to either party hereto shall be deemed sufficiently given if addressed
in case of the Guarantor to:
Inbrand Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇.▇.▇.
and in case of Rabobank International to
Cooperatieve Centrale Raiffeisen-Bocrcnleenbank B.A.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
or to such other addresses as may from time to time be notified in writing by
either party to the other.
ARTICLE 13
In respect of this Guaranty and its implementation, the Guarantor irrevocably
waives any claim it may now or at any time have to immunity of any kind as to
court or arbitration proceedings and the enforcement of any awards, sentences,
judgements, inductions, decrees or court orders legally given or made in
connection with such proceedings.
ARTICLE 14
Rabobank International shall have the right to set-off or to apply amounts on
deposit or account with it or any of its affiliates in reduction of amounts due
hereunder, regardless of the currency of such amounts.
ARTICLE 15
The Guarantor shall reimburse Rabobank International on demand for all costs
and expenses (including legal fees) incurred in connection with or arising from
negotiation, preparation, execution and enforcement of this Guaranty.
ARTICLE 16
This Guaranty and the interpretation thereof shall be governed by and construed
in accordance with the laws of the Netherlands.
ARTICLE 17
Any suit, action or proceeding against the Guarantor with respect to this
Guaranty may be brought in the competent courts of Amsterdam, the Netherlands,
or such other competent courts as Rabobank International in its sole discretion
may decide and Guarantor hereby submits to the non-exclusive jurisdiction of
such courts for the purpose of any suit, action or proceeding.
ARTICLE 18
For the purpose of this Guaranty, also in respect of juridical execution, the
parties hereto choose domicile, as far as Rabobank International is concerned
at Utrecht, 18 Crocsclaan, the Netherlands and as far as Guarantor is concerned
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 30066,/United States of America.
IN WITNESS WHEREOF the parties hereto, acting through their duly authorized
representatives, have executed this Guaranty in two originals.
I. COOPERATIEVE CENTRALE RAIFFETSEN-BOERENLEENBANK ▇.▇.
▇▇. INBRAND CORPORATION
SCHEDULE A
Financial covenants
Computed at least quarterly and based on financial statements and compliance
certificates provided by the Borrowers and the Guarantor and using GAAP
definitions.
Fiscal Quarter and Year Ending
1996 1997 1998 1999 and later
Minimum current ratio 1.25 1.25 1.25 1.25
Minimum adjusted tangible
not worth (millions) $ 30 $ 35 $ 40 $ 45
Maximum debt to adjusted
tangible net worth 2.50 2.50 2.25 2.25
Minimum fixed charge
coverage ratio* 1.50 1.50 1.50 1.50
Maximum annual capital
expenditures (millions) $ 27 $ 27 $ 30 $ 30
Maximum funded debt/
EBITDA 3.0 3.0 3.0 3.0
* Calculation: (net income + interest expense + lease expense +
depreciation + amortization)/ (current maturities funded debt
+ interest expense + lease expense)