1
EXHIBIT 10.67
ROLL-OVER LOANS FACILITY AGREEMENT
(NLG 25,000,000)
between
DENALI INTERNATIONAL HOLDINGS B.V.
and
ABN AMRO BANK N.V.
and
ING BANK N.V.
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Contents ZKN - 06 99 BK
--------
Article Page
1. DEFINITIONS 4
2. AVAILABILITY 5
3. DRAWING 6
4. INTEREST PERIODS 6
5. INTEREST/FEES 6
6. ALTERNATIVE INTEREST 7
7. REPAYMENT 7
8. PAYMENTS 8
9. COSTS AND EXPENSES 8
10. SECURITY AND COVENANTS 8
11. CONSOLIDATED NEGATIVE PLEDGE 9
12. INSURANCE 9
13. RESTRUCTURING CLAUSE 9
14. ANNUAL ACCOUNTS AND INFORMATION 10
15. EVENTS OF DEFAULT 10
16. COMMUNICATIONS 12
17. OTHER PROVISIONS 12
18. REPRESENTATION AND WARRANTIES 13
19. CONVERSION INTO TERM LOAN 13
20. PARTICIPATIONS / AGENCY 14
21. GENERAL CONDITIONS 14
22. LAW AND JURISDICTION 14
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This agreement is made between:
1. Denali International Holdings B.V., established in Amsterdam,
Hereinafter referred to as 'the Borrower', and
2. ABN AMRO Bank N.V., having its registered office in Amsterdam, the
Netherlands, hereinafter referred to as 'ABN AMRO' and ING Bank N.V.,
having its registered office in Amsterdam, the Netherlands, hereinafter
referred to as 'ING', ABN AMRO and ING hereinafter collectively
referred to as 'Banks" and each individually also referred to as
'Bank'.
WHEREAS:
- Denali ▇▇▇▇▇ Europe B.V. ("DWE") and ABN AMRO have discussed
the (partial) financing of the acquisition by DWE of the
shares in the capital of ▇▇▇▇▇ N.V. ('▇▇▇▇▇'), established at
Enschede, the Netherlands;
- following these discussions DWE has requested ABN AMRO to put
before DWE an indicative term sheet with regard to the main
details of such acquisition facility;
- ABN AMRO has sent the aforementioned term sheet to DWE by
letter dated 20th April 1999 with regard to a facility in
which ING is prepared to participate;
- DWE has on the basis of this term sheet and on the basis of
the subsequent discussions with the Banks, particularly the
discussions held in the meeting of 7 June 1999 with regard to
the maximum level of the financing, indicated its preparedness
to accept a final offer;
- this resulted in ABN AMRO and ING providing a loan to DWE in
the principal amount of NLG 25,000,000 (the "Loan") based on
an agreement among DWE and ABN AMRO and ING dated 6/11 June
1999 (the "Loan Agreement I"), the amount of which Loan has
been made available to DWE as per 1 July 1999 by means of
advance financing in current account with ABN AMRO;
- DWE has at the date this agreement is signed obtained more
than 88% of the shares in the capital of ▇▇▇▇▇;
- the group of companies to which DWE and the Borrower belong
has decided to reorganize its group structure, inter alia by
means of assigning the Loan by DWE to the Borrower and
releasing DWE of the rights and obligations of Loan Agreement
I and, in consideration thereof; by transferring part of the
shares in the capital of ▇▇▇▇▇ by DWE to the Borrower;
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- therefore parties wish to lay down all of their respective
rights and obligations relating to the Loan in this Agreement;
- the Banks hereby offer to the Borrower, for the partial
refinancing of the acquisition of ▇▇▇▇▇, a facility consisting
of:
- a 6-year roll-over loan for the maximum amount of NLG
15,000,000 ("Loan A")
- a 2-year roll-over loan for the maximum amount of NLG
10,000,000 ("Loan B") to be refinanced as of 1 August 2001 or
within six weeks after 100% of the ▇▇▇▇▇ shares have been
obtained by the Borrower, whichever is earlier;
Loan A and Loan B hereinafter individually also referred to as 'Loan'
and together referred to as 'Loans', to which the following terms and
conditions and other details shall be applicable.
IT IS HEREBY AGREED AS FOLLOWS:
Article 1
DEFINITIONS
In this agreement the following expressions shall have the following meanings:
Agent: shall mean ABN AMRO in its capacity as agent for the
Banks as set out in Article 20;
Business Day: shall mean a day other than Saturday or a Sunday on
which banks generally are open for business in the
Netherlands;
Cash Available For
Debt Service: means in respect of any Relevant Period, EBITDA for
such period after the:
- addition (or deduction) of any non-cash items dealt
within the income statement before EBIT;
- deduction of cash taxes paid;
- addition (or deduction) of increases (or decreases)
of changes in net working capital requirements;
- deduction of all capital expenditures;
Consolidated Debt
Service Coverage
Ratio: means, in respect of any Relevant Period, the ratio
of the Cash Available for Debt Service to the Debt
Service Obligations;
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Debt Service
Obligations: means, in respect of any Relevant Period, the
aggregate amount of interest (including the interest
element of leasing and hire purchase payments),
commissions, fees, discounts, and other finance
payments paid by the Borrower (on a consolidated
basis), including any commissions, fees, discounts
and other finance payments paid by the Borrower (on a
consolidated basis) under any interest hedging
arrangements, but deducting any commissions, fees,
discounts and other finance payments received by the
Borrower (on a consolidated basis) under any interest
rate hedging arrangement permitted by this agreement,
plus current maturities of long term debt and any
short term debt which has to be repaid;
EBIT: shall mean, in respect of any Relevant Period, the
consolidated earnings before interest and taxes of
the Borrower for such period;
EBITDA: means, in respect of any Relevant Period, EBIT for
such period plus depreciation and the amount
attributable to amortisation of goodwill or any other
intangible assets (including capitalised transaction
costs) during that period;
Euribor: means, in relation to any amount denominated in
Netherlands guilders and owed by The Borrower
hereunder on which interest for a given period is to
accrue;
(a) the percentage rate per annum which appears on
the page of the Telerate Screen which displays the
European Interbank Offered Rate for term deposits in
euro (being currently page "248") for such period at
or about 11:00 a.m. (Central European Time) on the
Quotation Date for such period, or
(b) if such page or such service shall cease to be
available, such other page or such other service for
the purpose of displaying the European Interbank
Offered Rate for term deposits in euros as ABN AMRO,
after consultation with the Borrower, shall select;
Consolidated
Interest Cover Ratio: means EBIT divided by the sum of gross interest paid
and capitalised interest, as shown in (i) the
consolidated annual accounts of the Borrower
accompanied by an unqualified auditor's report drawn
up by a register accountant, acceptable to the Agent
and in accordance with the calculation bases and
accounting principles applied in the consolidated
annual accounts and (ii) the quarterly accounts as
referred to in Article 14;
Interest Period: shall mean a period of one, three or six months as
the Borrower may select;
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Loan Period: shall, with regard to Loan A, mean the period
commencing on the date the amount of Loan A has been
made available to the Borrower hereunder and ending
on 1 August 2005, during which period the Banks have
agreed to lend the amount of Loan A to the Borrower
on the terms and conditions set forth in this
agreement; and shall with regard to Loan B mean the
period commencing on the date the amount (or a
tranche thereunder) of Loan B has been made available
to the Borrower hereunder and ending on 1 August 2001
or within six weeks after 100% of the ▇▇▇▇▇ shares
have been obtained by the Borrower, whichever is the
earlier, during which period the Banks have agreed to
lend the amount of Loan B to the Borrower on the
terms and conditions set forth in this agreement.
Quotation Day: means in relation to any period for which an interest
rate is to be determined hereunder, the Business Day
which is two Business Days before the first day of
such period;
Relevant Period: means each period of twelve months ending on the last
day of the Borrower's financial year and each period
of twelve months ending on the last day of each
financial quarter of the Borrower's financial years
(other than the last financial quarter of any such
financial year);
Tangible Net Worth ▇▇▇▇▇: issued and paid up share capital plus reserves,
deferred taxation liabilities (including WIR
equalisation account) and loans subordinated to
▇▇▇▇▇'▇ debts to the Banks, minus intangible assets,
receivables from shareholders and/or managing
Directors, shares ▇▇▇▇▇ holds in its own company and
any intercompany loans, as shown in (i) the
consolidated annual accounts of ▇▇▇▇▇ accompanied by
an unqualified auditor's report drawn up by a
registered accountant acceptable to the Agent and in
accordance with the calculation bases and accounting
principles applied in the consolidated annual
accounts and (ii) the quarterly accounts as referred
to Article 14;
Article 2
AVAILABILITY
The amount of the Loan shall not be made available to the Borrower until each
and all of the following conditions precedent have been complied with in form
and substance satisfactory to the Agent:
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- legal confirmation by Denali Incorporated, acceptable to the Agent, of
the final fiscal and legal structure of the Borrower and ▇▇▇▇▇;
- confirmation by Denali Incorporated, acceptable to the Agent, that no
defaults on current facilities of Denali Incorporated have occurred;
- agreement between the Banks and Denali Incorporated under new
facilities Denali Incorporated;
- receipt by the Agent of a declaration of approval of or a declaration
of no objection to all credit facilities granted by ABN AMRO and ING to
the Borrower and ▇▇▇▇▇, issued by the providers of the syndicated loan
to Denali Incorporated;
- receipt of satisfactory due diligence;
- receipt by the Agent of the annual investment budget 1999, 2000 and
2001;
- the security and covenants stated in Article 10 have been provided
and/or complied with;
- the terms and conditions contained in Article 17 have been complied
with in full;
and no events or circumstances referred to in Article 15 have occurred or are
continuing.
The loans shall be made available to the Borrower by crediting the current
account of DWE in order to repay the advance financing referred to in the
preamble of this agreement. Upon repayment of this advance financing by
crediting the current account of DWE, DWE shall be discharged from its
liabilities under Loan Agreement I.
Article 3
DRAWING
a. The Borrower shall draw the amount of the Loans in one amount not later
than 6 August 1999. The Borrower shall notify the Agent at least one
Business Day prior to the date of the intended drawing.
b. Notification as referred to in section a. of this Article shall be
given by telefax, by telephone or in writing. In the case of
notification by telephone, the Agent shall have the right to request
written confirmation from the Borrower before making the amount of a
Loan available to the Borrower.
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c. If the amount of the Loans shall not have been drawn by the ultimate
drawing date referred to in section a of this Article, the Agent shall
in its discretion be entitled without any further instructions from the
Borrower to make the amount of the Loans available to the Borrower as
of that date.
Article 4
INTEREST PERIODS
a. The Loan Period is divided into successive Interest Periods. The first
Interest Period shall commence on the day on which the amounts of the
Loans (or in the case of Loan B a tranche thereunder) has been made
available to the Borrower hereunder and each subsequent Interest Period
shall commence on the day immediately following the last day of the
preceding Interest Period.
With a view to Article 3, section a, several Interest Periods may exist
simultaneously.
b. The Borrower shall notify the Agent of the length of the subsequent
Interest Period not later than three Business Days prior to the first
day of such Interest Period, under the understanding that the last day
of the selected Interest Period may not be later than the last day of
the Loan Period. Failing such notification, the subsequent Interest
Period shall be of the same length as the Interest Period immediately
preceding it, except when such Interest Period is the first Interest
Period, in which case the length of the subsequent Interest Period
shall be three months.
c. The notification referred to in section b. of this Article can be given
by telefax, by telephone or in writing. In the case of notification by
telephone, the Agent shall be entitled to require a written
confirmation from the Borrower before setting the interest rate for the
Interest Period concerned or, should it concern the first Interest
Period, before making the amount of the Loan available to the Borrower.
d. If any Interest Period selected by the Borrower commences before the
due date of an instalment referred to in Section a. of Article 7 and
ends after that due date, the Borrower shall also select a separate
Interest Period ending on that due date for a part of the amount of
Loan A equal to such instalment. If the Borrower shall fail to do so,
the Borrower shall be deemed to have opted for a separate Interest
Period as referred to above.
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Article 5
INTEREST/FEES
a. The Borrower shall pay;
(i) interest on the drawn and non-repaid portion of each Loan at a
rate per annum that is equal to Euribor (for the term
corresponding to the length of the relevant Interest Period)
plus a margin ('Margin') of 1.75%;
(ii) a front-end fee of NLG 50,000, which the Borrower shall be
liable to pay the Agent on the date this agreement is executed
by all parties hereto;
(iii) a commitment fee of 0.75% p.a. on the daily undrawn part of
Loan B, which is payable monthly in arrears throughout the
Loan Period, for the first time on 1 September 1999 and for
the last time on the last day of the Loan Period.
b. Interest and commitment fee shall be calculated on the basis of the
actual number of days elapsed and a 360-day year.
c. Interest and commitment fee computed by the Banks shall, save for any
manifest error, be binding. The Agent shall notify the Borrower in
writing of the amount of interest computed. Interest in respect of any
Interest Period shall be paid on the last day of the Interest Period
concerned. In case the duration of an Interest Period is six months,
interest shall be calculated and shall be payable in three-monthly
instalments on the day falling three months after the first day of such
Interest Period as well as on the last day of such Interest Period.
Article 6
ALTERNATIVE INTEREST
a. If the Agent shall have determined at any time prior to the
commencement of an Interest Period that by reason of circumstances
affecting the interbank money market in the EMU-countries, the interest
rate for such Interest Period cannot reasonably be determined on the
basis of Euribor, the Agent shall forthwith notify the Borrower
thereof.
b. The Agent and the Borrower shall then negotiate in order to agree an
interest rate for such Interest Period. In the absence of such
agreement prior to the beginning of the Interest Period, the Agent
shall set an interest rate for such Interest Period on the basis of the
cost to the Agent of funding the Loan, increased by the margin
mentioned in paragraph (i), section a, of Article 5.
c. If the parties are unable to agree upon any interest rate, the Borrower
shall have the right to prepay the full relevant Loan (or the relevant
tranche thereunder should the Interest period relate thereto) together
with accrued interest, costs, expenses and all other sums due and owing
by the Borrower to the Banks under this agreement, provided the
Borrower has given
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the Agent written notice of the intended prepayment within ten Business
Days after the Agent has set the interest rate, and the relevant Loan
(or the relevant tranche thereunder) is repaid within ten Business Days
after such notice, which shall be irrevocable.
Article 7
REPAYMENT
a. The Borrower shall repay:
- Loan A in 24 successive three-monthly installments of NLG
625,000 beginning on 1 October 1999;
- Loan B in one amount on the last day of the Loan Period.
b. The Borrower shall only be entitled to make early repayments on a Loan
provided all the following conditions are complied with:
(i) the Borrower has given the Agent at least one month's prior
notice by registered letter, indicating the amount and date of
the intended early repayment;
(ii) the early repayment shall coincide with the last day of an
Interest Period;
(iii) the prepaid amount shall be at least NLG 1,000,000 or a
multiple thereof.
c. Upon giving the notice referred to in paragraph (i), section b. of this
Article the Borrower shall be obliged to make the early repayment.
d. The Borrower shall be obliged to make early repayments on a Loan in
amounts equal to:
(i) net cash proceeds of any sale of assets (except in the course
of an ordinary conduct of business), or
(ii) insurance proceeds (if these are not reapplied).
Immediately upon occurrence of any one of the events referred to in
this section d. the Borrower shall notify the Agent thereof in writing,
indicating the relevant amount. Section b. of this Article shall then
not apply, except paragraph (ii) thereof.
e. Early repayments shall firstly be applied in reduction of Loan B and
secondly (provided Loan B has been fully repaid) in reduction of the
repayments of Loan A mentioned in section a. of this Article in order
of their maturity dates or their reverse order, as the Borrower may
select.
f. Any early repayment shall not be available for redrawing.
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Article 8
PAYMENTS
a. The Borrower shall make all payments without any costs to the Banks and
without any deduction or set-off. These payments shall be made on the
due dates into the account so designated by the Agent.
b. The Agent shall be entitled, but not obliged, to debit all amounts
payable by the Borrower to the Banks under this agreement to the
Borrower's current account at the branch of ABN AMRO at Enschede on the
agreed due dates. The Borrower shall be responsible for ensuring that
this debit will not exceed the amount available for payments and
withdrawals from such account.
c. Payments shall be applied as follows: firstly against costs and
expenses incurred, secondly against compensation for losses sustained
and income lost and default interest, thirdly against fees and
commissions and interest and fourthly against principal.
d. If any sum shall become payable on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day, unless
such Business Day is in a different calendar month in which case such
payment shall be made on the last preceding Business Day, interest then
being adjusted accordingly as well as the duration of the relevant
Interest Period.
Article 9
COSTS AND EXPENSES
a. All costs and expenses incurred in connection with this agreement,
including any taxes payable by a Bank (other than on net profit), as
well as any reasonable costs and expenses incurred by the Agent or a
Bank in connection with the Borrower's failure to comply with or
fulfill any obligation under this agreement at the time and in the
manner required, including out-of-pocket expenses, costs related to
exercise the any security, costs in relation to break funding,
collection charges, fees of legal consultants and other experts and
costs of proceedings, irrespective against whom brought, shall be for
the account of the Borrower and be paid by the Borrower on the Agent's
first demand.
b. Upon the expiration of a period of not less than three months from the
date of this agreement, the Agent shall notwithstanding the provisions
contained in Article 5 and 6 be entitled at its discretion to refix the
agreed interest rate if:
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(i) the cost to the Banks of funding or continuing to fund the
Loans is above the level at the time when this agreement was
entered into, and
(ii) such increase is the consequence of loan restrictions, changes
in capital adequacy requirements or other rules and
regulations (including guidelines the observance of which is
requested) of the Netherlands central bank or of Dutch,
foreign or international monetary authorities.
Article 10
SECURITY AND COVENANTS
a. The following security and covenants have been or will be provided to
secure all present and future indebtedness of the Borrower to the Banks
on account of the Loans or any other account whatsoever, whether as
part of ordinary banking business or otherwise:
- first ranking pledge (pandrecht) on the shares held by DWE and
the Borrower in the capital of ▇▇▇▇▇;
- first ranking pledge (pandrecht) on the shares held by DWE in
the Borrower;
- an independent corporate guarantee for a principal amount of
NLG 25,000,000 by DWE
- subordination of the mezzanine loan granted to the Borrower by
Denali Incorporated (both interest and repayments). The
mezzanine loan agreement shall have to be to the Agent's
satisfaction;
b. The securities and covenants referred to in section a. of this Article
shall be documented using agreements to be determined by the Agent. Any
costs involved shall be for the Borrower's account.
c. The Borrower agrees that if third parties have provided security or
covenants, the Agent may provide such third parties with information
about its financial position and any facts relating to the Loans which
may be of importance to such third parties.
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Article 11
CONSOLIDATED NEGATIVE PLEDGE
As long as the Borrower owes the Banks any sum on any account whatsoever, or may
in any manner become indebted to the Banks as a result of present or future
obligations, the Borrower shall not transfer, or promise to transfer, title to
all or any of its assets -except where such transfer forms part of its ordinary
business-, or charge, or promise to charge, all or any of its assets in favour
of a third party unless it has obtained the prior express consent of the Agent.
The Borrower has not committed itself and shall not commit itself in this
respect to any third party.
The Borrower undertakes that none of its subsidiaries shall transfer, or promise
to transfer, title to all or any of its assets -except where such transfer forms
part of its ordinary business- or charge, or promise to charge, all or any of
its assets in favour of a third party unless it has obtained the prior express
consent of the Agent. The Borrower hereby commits itself to the Banks that none
of its subsidiaries has committed itself or shall commit itself in this respect
to any third party.
Article 12
INSURANCE
The Borrower shall at all times provide for sufficient and adequate insurance
against general business risks as well as specific risks pertaining to its line
of business.
Article 13
RESTRUCTURING CLAUSE
The Borrowers shall notify the Agent without delay of any changes in the
structure of its company and any subsidiaries and group companies, including
changes in the person or persons of any shareholders of the Borrower and any
subsidiaries and group companies.
Article 14
ANNUAL ACCOUNTS AND INFORMATION
a. Denali Incorporated shall send to the Agent two copies of its
consolidated audited balance sheet, profit and loss account and notes
thereto for the past financial year and shall provide the Agent with
the consolidating financial statements for the Borrower and ▇▇▇▇▇
reviewed by a register accountant, immediately after completion but in
any event not later than six months after the end of the relevant
financial year.
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b. The Borrower shall send the Agent two copies of the balance sheet,
profit and loss account and notes thereto for the past quarter of
itself, DWE and ▇▇▇▇▇, including a ratio compliance certificate (the
first time the financial ratio's as defined in Article 15, section a.
under (xi) up to and including (xiii), shall be tested will be 30 June
2000, using the average over the four previous consecutive quarters; as
long as ▇▇▇▇▇ has not changed its bookyear the ratio's as defined under
(xiv) and (xv) will be tested at the end of each calendar year, for the
first time on 31 December 1999, otherwise for the first time on 30 June
2000), both consolidated and non-consolidated, immediately after
completion but in any event not later than one month after the end of
the relevant quarter.
c. The Borrower shall provide the Agent, both on its first demand and
unsolicited, with any details of its financial position and business
developments which may have a material effect on its financial
position.
Article 15
EVENTS OF DEFAULT
a. The outstanding balance of the principal amount of the Loans together
with accrued interest and any other sum due from the Borrower under
this agreement shall be payable forthwith and in full without any
demand or default notice being required;
(i) if the Borrower and/or ▇▇▇▇▇ fail(s) to comply with or fulfil,
at the time and in the manner required, any obligation towards
a Bank whether arising under this agreement (including but not
in any way limited to the obligations referred to in Article
17 thereof) or otherwise, or a Bank has revoked its credit in
current account granted to the Borrower and/or ▇▇▇▇▇;
(ii) if the Borrower and/or ▇▇▇▇▇ fail(s) to comply with or fulfil,
at the time and in the manner required, any obligation under
any other loan or financing arrangement with or any guarantee
towards third parties;
(iii) if the Borrower decides to cease carrying on its business, to
discontinue, sell, let or transfer title to the whole or part
of its business; if a license, permit or registration which
the Borrower requires in order to carry on its business
expires or is refused or withdrawn; if the nature of the
Borrower's business in the opinion of the Agent is changed in
a material way; if the Borrower decides to transfer abroad the
running of its business; if the Borrower acts contrary to any
statutory regulations with respect to its business; if the
Borrower ceases to pursue the present corporate objects set
out in its memorandum and articles of association or loses its
legal status;
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(iv) if there is a dissolution or winding up (liquidatie) or a
decision or an obvious intention to dissolve or wind up;
(v) if the Borrower applies for a moratorium or other judicial
postponement of payment of debts, files a bankruptcy or
winding-up petition, is adjudicated bankrupt or wound-up,
proposes an extrajudicial arrangement or composition with its
creditors or, when insolvent, transfers any of its assets to
its creditors (boedelafstand);
(vi) if the whole or, in the opinion of the Agent, a substantial
part of the Borrower's assets is taken in execution or
attached by way of security and such attachment is not lifted
or discharged within thirty days after having been effected;
if the whole or, in the opinion of the Agent, a substantial
part of the Borrower's properties is sold, encumbered,
expropriated, confiscated, lost or damaged;
(vii) if the Borrower's legal structure is changed and/or the
Borrower merges or associates with one or more third parties,
or if, in the opinion of the Agent, a significant change -
whether or not as a consequence of the transfer of shares -
has taken place in the control of the Borrower's business or
if the memorandum and articles of association or the rules or
regulations of the Borrower are, in the opinion of the Agent,
amended to a significant extent;
(viii) if the Borrower, without the Agent's prior written consent,
releases its shareholders from liability to further calls on
partly paid-up shares, purchases its own shares, redeems its
shares or makes a distribution from its reserves, which shall
include a decision or an obvious intention to do so;
(ix) if any circumstances mentioned in (ii) to (viii) (inclusive)
occur in respect of a surety, a guarantor, jointly and
severally liable debtor or a person who has provided the Banks
with any other type of security for the Loans; if the surety
or guarantor cancels or withdraws a surety bond or guarantee
issued by him to the Banks on the Borrower's behalf; if a
third party which has provided or has promised to provide the
Banks with security for the Loans default in the performance
of any obligation in respect of the security provided or
promised;
(x) if any circumstances mentioned in (ii) to (viii) (inclusive)
occur in respect of one or more businesses or companies which
are included in the Borrower's consolidated balance sheet, or
in respect of one or more businesses or companies which have a
controlling interest in the Borrower, or if any such business
or company defaults in
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the performance of any obligation towards a Bank in connection
with credit and/or guarantee facilities granted by a Bank;
(xi) if the Consolidated Interest Cover Ratio is at any time less
than or equal to 3;
(xii) if the Consolidated Debt Service Cover Ratio in the year
1999/2000 is less than or equal to 1.0, in the year 2000/2001
less than or equal to 1.1 and in the year 2001/2002 and
thereafter less than or equal to 1.2;
(xiii) if in the Relevant Period the consolidated total interest
bearing debt (excluding the shareholder's loan from Denali
Incorporated) divided by EBITDA in the year 1999/2000 is
higher than or equal to 4.0 and in the year 2000/2001 and
thereafter higher than or equal to 3.5;
(xiv) if the Tangible Net Worth ▇▇▇▇▇ in the Relevant Period during
the years 1999 and 2000 is less than or equal to 25% of
▇▇▇▇▇'▇ consolidated balance sheet total (including off
balance obligations entered into after the date this agreement
is signed and minus the amounts brought in diminution in
calculating the Tangible Net Worth ▇▇▇▇▇);
(xv) if the Tangible Net Worth ▇▇▇▇▇ in the Relevant Period during
the years 2001 and thereafter is less than or equal to 30% of
▇▇▇▇▇'▇ consolidated balance sheet total (including off
balance obligations entered into after the date this agreement
is signed and minus the amounts brought in diminution in
calculating the Tangible Net Worth ▇▇▇▇▇);
(xvi) if all or any of the goods, properties and other assets
(goederen) provided to the Banks as security for the Loans are
lost, destroyed or damaged or expire for any reason
whatsoever;
(xvii) if the Borrower has given the Agent or the Banks incorrect
information or has withheld information from the Agent or the
Banks which they or any one of them deems significant in
connection with the conclusion of this agreement;
(xviii) if the Loans are not used for the purpose for which they were
granted, or if in the opinion of the Agent, it is clear that
the purpose for which the Loans were granted has not been
achieved or will not be achieved either wholly or to a
significant extent;
17
(xix) if any legislation or its interpretation is changed or a
governmental action is taken, which affects or may affect this
agreement and/or the security provided and/or the value
thereof, and the Borrower and the Agent have not within a
reasonable period to be determined by the agent reached a
written agreement adjusting the relevant provisions and/or
security on such a basis that, in the opinion of the Agent,
the position of the Banks is not adversely affected.
b. The Borrower shall forthwith notify the Agent of the occurrence of any
events mentioned in section a (ii) to (xvi) (inclusive) of this
Article.
c. Immediately upon the occurrence of any events mentioned in section a.
of this Article, the obligations of the Banks under this agreement
shall terminate.
d. If the Agent demands repayment of the Loans pursuant to the provisions
in section a. of this Article, the Borrower shall forthwith pay the
Agent lump sum compensation for losses sustained and income lost. Such
compensation shall be 1.50% of the amount of which repayment is
demanded by the Agent, without prejudice to the Agent's and the Banks'
right to be fully compensated for any higher losses sustained and
income lost.
18
e. Without prejudice to the provisions in the sections a. and c. of this
Article, the Borrower shall be liable, in the event of late payment of
any sum due hereunder, to pay the Agent default interest on the overdue
amount as from the due date thereof until the date of actual payment at
a rate per annum that is equal to Euribor for the relevant Interest
Period and a Margin of 3.25%. As regards late repayment of principal,
the default interest rate shall, as from the due date, replace the
interest rate referred to in Article 5 and 6.
Article 16
COMMUNICATIONS
a. All notices and communications regarding this agreement shall, unless
otherwise stated in this agreement, be given or made in writing or by
telefax, and shall be directed to the following addresses;
for the Borrower: Denali International Holdings B.V.
▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
telefax: #(0541) 858501
for the Banks: ABN AMRO Bank N.V.
Dept. Corporate Banking
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇ ▇▇ ENSCHEDE
telefax: #(053) 4834592
b. Changes of address shall not be effective until they have been notified
in writing to the other party.
Article 17
OTHER PROVISIONS
a. Equity stake and/or shareholders' loan of together totaling at least
NLG 60,000,000 by Denali Incorporated;
19
b. no repayment or reduction shall be made of the intercompany or
shareholders' loan or equity shall be made until the Loan has been
totally repaid;
c. the Borrower and/or ▇▇▇▇▇ and/or any of its subsidiaries shall not
obtain additional credits, loans, guarantees etc. with third parties
without the prior written consent of the Agent, which consent shall not
be unreasonably withheld;
d. the Borrower and/or ▇▇▇▇▇ shall not grant any intercompany loans,
without the prior written consent of the Agent, which consent shall not
be unreasonably withheld;
e. the Borrower and/or ▇▇▇▇▇ shall not make any further acquisitions
without the prior written consent of the Agent, which consent shall not
be unreasonably withheld;
f. the Borrower shall not make any dividend payment to Denali Incorporated
if the Tangible Net Worth ▇▇▇▇▇ is or will be as a result of any
dividend payment less than 25% of the Borrower's consolidated balance
sheet total (minus the amounts brought in diminution in calculating the
Tangible Net Worth ▇▇▇▇▇) and the Consolidated Debt Service Cover Ratio
is less than 1 after pay-out (where in this case dividend is considered
part of the Debt Service Obligations), and maximized to NLG 2,000,000
to service interest on sub debt in the United States;
g. the Borrower shall see to it that ▇▇▇▇▇ will not issue new shares
without the prior written consent of the Agent;
h. confirmation by means of co-signing this agreement of Denali
Incorporated that the terms and conditions of the Loans (including but
not limited to the securities and covenants referred to in Article 10)
do not in any way contradict with the financing arrangements of Denali
Incorporated in the United States of America.
Article 18
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Banks that:
(i) the entering into the performance of this agreement will not contravene
any provision of any applicable law or regulation or any order or
decree of any governmental authority or court to the jurisdiction of
which it is subject or its constitution or its bye-laws or any other
statutes governing its activities or any mortgage, deed, or contract to
which it is party or which is binding upon the Borrower or any of its
assets;
(ii) it is not in default under any mortgage, deed or contract to which it
is a party or which is binding upon the Borrower or any of its assets
and there are no material litigation or administrative proceedings
before any court or government authority pending or (to its knowledge)
threatening which would have a materially adverse effect on its
business assets or conditions;
20
(iii) the entering into and the performance of this agreement have been duly
authorized by all necessary corporate and other action on its part and
it has obtained all the permits, consents and authorization necessary
in this connection;
(iv) this agreement constitutes direct, general, legally valid and binding
obligations of the Borrower and is enforceable in accordance with its
terms.
Article 19
CONVERSION INTO A TERM LOAN
a. The Borrower may, subject to at least fifteen Business Days' notice,
request the Agent to wholly or partially convert the outstanding
balance of Loan A as from the first day of the subsequent Interest
Period into a loan with one or more Interest Periods ('Term Loan')
which terminates on the last day of the Loan Period or a date yet to be
agreed between the parties ('Final Repayment Date');
b. The request for conversion shall be made in writing and specify the
amount to be converted and the date of the intended conversion
('Conversion Date').
c. The Agent shall set the interest rate for the Term Loan on the basis of
its then prevailing rates and shall not later than ten Business Days
prior to the Conversion Date notify the Borrower of the interest rate.
Until seven Business Days after receipt of such notice from the Agent,
the Borrower shall have the right to revoke the request for conversion
into a Term Loan. Thereafter the request can no longer be revoked.
d. Failing agreement on the interest rate, the Borrower and the Agent
shall revert to the situation existing prior to the Borrower's request
referred to in section b. of this Article.
e. The Term Loan shall be repaid in equal three-monthly instalments due on
1st January, 1st April, 1st July and 1st October of each year. The
instalments shall be of such an amount that the Term Loan will have
been repaid in full on the Final Repayment Date.
f. The terms and conditions, also including any break funding arrangement,
governing the Term Loan shall be incorporated in a separate agreement.
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Article 20
PARTICIPATIONS / AGENCY
ABN AMRO will participate in Loan A for an amount of maximum NLG 10,000,000. ING
will participate in Loan A for an amount of maximum NLG 5,000,000.
ABN AMRO will participate in Loan B for 65% of the amount made available to the
Borrower under Loan B. ING will participate in Loan B for 35% of the amount made
available to the Borrower under Loan B.
ABN AMRO will act as agent on behalf of the Banks, with regard to the collection
and payment of monies under this agreement, and with regard to all matters the
Agent is explicitly charged with in this agreement or in the intercreditor
agreement concluded between ABN AMRO and ING.
Article 21
GENERAL CONDITIONS
Except where this agreement otherwise provides, it shall be subject to the
General Conditions (Algemene Voorwaarden) of ABN AMRO. By signing this agreement
the Borrower declares that it has received a copy of said General Conditions.
Article 22
LAW AND JURISDICTION
This agreement shall be governed by the laws of the Netherlands. All disputes
arising out of this agreement shall in the first instance be brought before the
competent court in Amsterdam.
Agreed and signed in six copies at _________ on ______________, 1999.
DENALI INTERNATIONAL HOLDINGS B.V.
ABN AMRO BANK N.V.
ING BANK N.V.
Seen and approved (in particular with regard to section a. of Article 14, and
section h. of Article 17 of this agreement).
DENALI INCORPORATED
Seen and approved
DENALI ▇▇▇▇▇ EUROPE B.V.
Seen and approved (in particular with regard to Article 14, Article 15 and
Sections c., d. and e. of Article 17 of this agreement)
▇▇▇▇▇ N.V.
