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EXHIBIT 10.20
CAGGIATI S.P.A.
LOAN AGREEMENT
This first day of June 1999, in the branch of UniCredito Italiano are present
for UniCredito Italiano Bank listed in the Register of Banks at number 2008.1,
having its registered office in Genova Via Dante 1 and its Head Office in Milano
Piazza Cordusio, listed at number 22 of the Register of Company at Genoa Court
with a share capital of Lit. 2,340,454,229,500, fiscal identification code
no. 00348170101 (hereafter called "Bank"), Mr. Tibiano Carubbi domiciled care
of the branch of UniCredito Italiano in Parma which represent UniCredito
Italiano in accordance with Articles 33, 34 and 35 of the Articles of
Association of the same company,
And Xx. Xxxxxx Xxxxx Xxxxxxxxxx born in Milano on 04/28/60 having its domicile
in Milano which intervenes as C.E.O. of Caggiati (the Company), registered
office in Milano, share capital Lit. 200,000,000,
in force of a Shareholders Meeting resolution dated May 12, 1999 which a copy
of which authenticated by the Public Notary Xxxxxx Xxxxxx in Parma is hereby
enclosed in force of the powers granted by the articles of Association
HEREBY AGREE AND STIPULATE AS FOLLOWS
Art. 1 PURPOSE OF THE LOAN AND AMOUNT
UniCredito Italiano (hereafter called "the Bank") grants to Caggiati S.p.A.
(hereinafter called "the Company"), which accepts it, a loan for the total
amount of Lit. 28.120 billion for the purpose of acquiring the assets of
Caggiati S.p.A., Colorno. The Company will give the Bank any documentation
necessary to prove the above investment.
The amount of Lit. 20.2 billion will be immediately available for drawing whilst
the amount of Lit. 7.920 billion will be drawn one year after the date of this
contract. If the second amount is not drawn within 13 months from the date of
this contract, it will automatically be canceled and not available for drawings.
Art. 2 CONDITIONS FOR GRANTING
The amount of each drawing, deducted from the first drawing the "imposta
sostitutiva" and any other charges as per letter delivered to the Company in
accordance with its instructions, is credited to the account number 24287/00
with the Parma Branch of UniCredito Italiano in the name of the Company, which
hereby acknowledges receipt.
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Art. 3 TERMS FOR REIMBURSEMENT
The validity of the loan is 15 years
The Company undertakes to reimburse the amount of each drawing within 15 years
for the first drawing and 14 years for the second drawing from June 1, 1999,
date in which the amortization schedule begins, by quarterly installments to be
paid at the counters of the Bank at the end of each quarter (i.e March 31,
June 30, September 30 and December 31) without the need of a specific request
by the Bank, according to the schedule, agreed between the parties, which signed
by the same is hereby enclosed to be integral part of this contract. For the
second drawing the schedule will be prepared and signed at the actual time of
the drawing.
The Bank has however the right, in its sole and exclusive judgment, after a
written communication to the Company 90 days prior to the expiry of the fifth
and tenth year from the date of this contract, to ask for the immediate
reimbursement of all sums due as principal and interest under the loan. The
Company will have the same right to be exercised under the same terms and
conditions as the Bank. In both cases, the prepayment, if effected at the date
in which is due, will not bear any commission or other charges.
The Bank in its only judgment may allow amendments to the amortization schedule.
Each installment includes the share of principal necessary to reimburse the
whole amount borrowed in the agreed period of 15 years in addition of interest.
Starting from today up to the date before the start the amortization schedule,
the Company will pay interest of pre-amortization at the rate as determined in
following article 4.
Art. 4 INTEREST
The interest rate is fixed at the rate of 4.145 percent p.a. for the initial
drawing of Lit. 20.2 billion; this rate will be valid for a period of five
years; for the second drawing of Lit. 7.920 billion, the rate will be determined
by applying to the then prevailing rate for a 5-year loan a margin of
0.50 percent p.a.
If the Bank does not exercise the right to ask for the reimbursement of the
amounts outstanding at the fifth and tenth year, the rate for each following
term of five years will be agreed between the parties based on the then
prevailing rate for a five year loan. Should the parties fail to reach an
agreement on the rate, the Company shall reimburse immediately, at the maturity
of the fifth and tenth year, any amount outstanding under the loan as principal
and interest.
If the Company fails to pay any amount due under the loan as principle, interest
or other title including the case of acceleration or cancellation of the
loan - the Company shall pay, from the date the amount is due, default interest
based on the Official Reference Rate as defined by Art. 2c.1 D. LGS 213/98
(previously known as Official Discount Rate) increased by a margin of
2 percent p.a.
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Art. 5 UNDERTAKINGS
The Company hereby undertakes to:
a) Utilize the loan for the purpose indicated
b) To pay to the Bank, at the time of first drawing even if not for the total
amount of the loan, the amount of the imposta sostitutiva as per D.P.R. 29
September 1973 n. 601 and following amendments and in any case to indemnify the
Bank against any taxes, stamp duties, or expenses of any kind incurred or which
will be incurred by the Bank on its behalf, for any assistance, judicial or
extrajudicial, provided, save obviously any security received for this loan
c) Inform previously the Bank of any change in its corporate structure (i.e.
share capital, Directors, Shareholders, Auditors, mergers, demergers)
administrative and financial situation (i.e. issue of bonds), technical and
economical situation as it is described in the documents presented to obtain the
loan and of any event which may modify the present structure and organization
of the Company
d) To inform previously the Bank of the intention to request new medium term
loans to other Banks or persons and in any case not to grant to anyone, from
today's date, liens, mortgages or other privileges to secure other loans,
without the prior written consent of the Bank
e) In order to obtain benefits as envisaged by law, to apply to the Personnel
employments terms and conditions not lower than those determined in the
Contratti Collettivi di Lavoro for the sector and the area as per art 36 of Law
20 May 1970 n. 300
f) To allow any investigation technical-administrative and to provide the Bank
with any document, in addition to those of art. 1, which the Bank may require
(i.e. balance sheet, shareholders meeting report etc.)
g) Not to distribute any dividends, without the prior written authorization of
the Bank.
Art. 6 SECURITY
The loan shall be secured at all times by a guarantee, in a form acceptable to
the Bank, issued by Xxxxxxxx International Corporation (the "Guarantor").
Art. 7 EVENTS OF DEFAULT, ACCELERATION EVENTS
The Bank will have the right to declare all sums under the loan immediately due
and payable as per art. 1186 Civil Code and cancel the contract as per art. 1456
Civil Code if:
a) The Company uses the loan, even if only in part, for purposes different from
those described in art. 1
b) The Company, its successors and assigns fail to pay any amount due under the
loan as principle or interest of due to the Bank, as a consequence of the loan,
for any other reason
c) The Company has not presented the documentation as per article 1
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d) Any legal process or petition have been presented against the Company or the
same has become insolvent or for any reason or event whatsoever (i.e. protests,
judiciary acts, winding up or similar procedures, changes in the corporate
structure of the Company share capital, directors, shareholders, auditors,
mergers, demergers - in the financial and economic situation of the Company) the
Bank deems in its sole judgment that the changes may likely materially and
adversely affect the ability of the Company to repay the loan or the value of
the security
e) It becomes known that the financial situation, data and any other
information presented by the Company to the Bank, both to obtain the loan and
subsequently, are not true
f) The Company is unable, due to restriction or law regulation, to indemnify
the Bank against the sums paid by the same for any reasons on behalf of the
Company
g) The Company has failed to observe the undertakings as detailed in art. 5
letter g
f) The Company has failed to observe any of the undertakings of art. 5.
In any of the above cases the Bank will have the right to declare all sums due
under the loan immediately due and payable without the need of any formality and
in the manner and form which it will deem more appropriate.
In any case all guarantees which have been obtained shall remain in full force
and effect.
Art. 8 COMMISSIONS AND CHARGES
The Company undertakes to pay to the Bank a commission of 25 b.p. flat on the
total amount of the loan.
All charges related to the loan are for the account of the Company
The Company will also pay to the Bank a commitment fee of 0.25 percent p.a. on
the undrawn amount of the loan, such commission to be paid from today's date
quarterly in arrears.
Art. 9. PREPAYMENT
The Company, its successors and assigns, will have the right to prepay in total
or in part, the loan, as principle or interest, including default interest,
provided that are paid to the Bank all sums in favor of the same, including the
difference against the Bank between the actual value of the balance of the loan
at the contractual interest rate and the actual value of the balance calculated
at the market rate of the time of the prepayment.
This article will apply also in any circumstance in which the Bank has the right
to ask for the immediate repayment of any outstanding under the loan.
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Art. 10 APPLICATION OF PAYMENTS
The Bank has the right to apply any sums paid by the Company, or for his
account, with preference, to pay expenses of any kind, including judicial ones
even though are not to be repeated, and to any other cost incurred by the Bank
on behalf of the Company, then to settle default interest and any other sum
which is overdue and at the end to pay interest and principle, save the right
however to utilize a different order of application.
Art. 11 PAYMENTS BY THIRD PARTIES
The Bank will have the right to refuse payments made by third parties on their
own behalf.
Art. 12 ASSIGNABILITY
The Company shall not have the right to assign or transfer any or all of its
rights or benefits hereunder, without the prior written consent of the Bank.
The Bank shall have the right to transfer any or all of its rights hereunder to
another bank after having informed the Company of its intentions.
Art. 13 NOTICES
For any purpose of law, the Bank chooses its domicile care of its Branch in
Parma.
The Company and the Guarantor in Colorno, Parma or, in case of difficulty, care
of the Town Hall of Colorno; the Bank will have the right to notify all acts,
including judicial ones, to the chosen domicile or to the true domicile of the
Company and the Guarantor.
Art. 14 UNCONNECTION WITH THE RELATIONS BETWEEN THE COMPANY AND THIRD PARTIES
The Bank, unless agreed otherwise in writing, is always to be deemed not
connected to any relation between the Company and third parties, so that no one
can have right or claim against it.
Art. 15 JURISDICTION
For any dispute which may arise in connection with the application and the
interpretation of this contract the Courts of Parma will have exclusive
jurisdiction.
Art. 16 EVIDENCE OF DEBT
The Bank's books and entries shall constitute conclusive evidence of any amount
due under the loan.
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Art. 17 FINAL DETAILS
Any obligation of the Company under the present contract are deemed to be
binding, jointly and severally, also on its successors and assigns
To this act and related formalities is applied the treatment envisaged in
Article 15 and following of D.P.R. 29 September 1973 n. 601 (exemption from
register taxes, stamp duties etc. in lieu of which is paid an imposta
sostitutiva which is paid by the Bank of the amount of the loans disbursed
each year)
On top of the amount of the imposta sostitutiva paid by the Bank and therefore
deducted by the same from the loan proceeds, in the percentage to be applied at
the time of the disbursement, the Company undertakes to reimburse to the Bank
eventual increases in said imposta, which may become due in relation to the
present contract, as a consequence of subsequent law regulations.
The Company hereby declares, having taking duly note of it, to wholly accept the
terms and conditions of the present contract and to specifically approve in
accordance with and for the effect of Article 1341 2nd paragraph of Civil Code,
those as per Art 4, 5, 7, 8, 15.
T. Carubbi
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T. Carubbi,
UniCredito Italiano
X.X. Xxxxxxxxxx
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X.X. Xxxxxxxxxx,
Caggiati S.p.A.
