EXHIBIT 10.1
SUBORDINATED LOAN AGREEMENT
This subordinated loan agreement (the "AGREEMENT") is made and entered
into as of 29 May 1998.
The undersigned:
1. DELFT INSTRUMENTS NEDERLAND B.V.,
having its registered office at Delft
herein represented by X.X. Xxxxxx and X.X. xx Xxxxx,
hereinafter referred to as "LENDER";
and
2. XXXXXX HEALTHCARE B.V., having its registered office at Delft herein
represented by Xxx X. Xxxxxxx, hereinafter referred to as
"BORROWER";
3. XXXXXX HEALTHCARE INC.
having its registered office at Sugar Land, Texas, United States of
America, herein represented by its President and CEO Xxxx Xxxxxxx,
hereinafter referred to as "GUARANTOR";
The Lender, the Borrower and the Guarantor are hereinafter jointly
referred to as the "PARTIES" and each individually, but indiscriminately
as a "PARTY".
WHEREAS
a. the Lender and certain of its affiliates on the one hand (the
"Seller') and the Borrower on the other hand have by an Agreement
for the Sale and Purchase of Shares dated March, 1998 (the "PURCHASE
AGREEMENT") (to which Purchase Agreement a copy of this Loan
Agreement will be attached as Schedule 4) agreed to sell and
transfer the full and unencumbered ownership of the Shares in the so
called Enraf-Nonius Companies;
b. the Seller has sold and transferred and the Borrower has purchased
and accepted the transfer of the Shares;
c. in accordance with Article 4.4 of the Purchase Agreement, the
balance of the Purchase Price, being NLG 9,000,000.-- (in words nine
million Dutch Guilders) will be paid by the Borrower to the Lender,
subject to and in accordance with this Agreement.
d. In furtherance of Article 4 of the Purchase Agreement, Parties now
wish to lay down the terms and conditions of the Loan in this
Agreement.
THEREFORE PARTIES HERETO AGREE AS FOLLOWS
ARTICLE 1
CAPITALIZED TERMS
1.1 Capitalized terms used herein shall have the same meaning as set out in
the Purchase Agreement, unless expressly stipulated otherwise herein.
ARTICLE 2
THE LOAN
2.1 The Borrower and the Lender agree, subject to the terms and conditions of
this Agreement and further conditional upon the transfer of the Shares on
the Completion Date, to convert on the Completion Date the balance of the
Purchase Price, being NLG 9,000,000. (in words: nine million Dutch
guilders) due by Purchaser to the Seller for the purchase of the Shares
into a 7 (seven) year subordinated loan in the amount of NLG 9,000,000.--
(in words: nine million Dutch Guilders) (the "PRINCIPAL AMOUNT") of the
Lender to the Borrower (the "LOAN").
ARTICLE 3
SUBORDINATION
3.1 Lender agrees that the obligations of the Borrower under this Agreement,
amongst which the payment of the Repayment and the Interest, are expressly
subordinated and junior in right of payment only to the obligations which
Borrower has towards Comerica Bank or any other bank that Borrower may
designate (the "BANK").
3.2 "Subordination" and "subordinated" as set out in article 3.1 of this
Agreement means that in case of an Event of Default as set out in article
8, paragraph a up to and including e of this Agreement, Lender shall not
receive any payment under this Agreement, unless and until the obligations
of Borrower towards the bank(s), as indicated in article 3.1 of this
Agreement, shall have been fully fulfilled. In all other events Borrower
shall fully and timely pay to Lender any amount due in accordance with the
provisions of this Agreement.
2
3.3 Borrower agrees not to prepay any amount due under the Maxxim Medical Inc.
note, dated 30 April 1996 in the amount of seven million US Dollars before
the entire Loan has been repaid.
3.4 Borrower furthermore agrees that no new subordinated indebtedness of
Borrower shall be senior or equal in rank to the Loan.
ARTICLE 4
INTEREST
4.1 The Borrower shall pay interest on the Principal Amount, outstanding under
the Loan (the "INTEREST"), at a rate and on the terms as described in this
article 4.
4.2 The Interest shall be calculated at a rate per annum of 4% (four percent)
for the first calendar year starting at the Completion Date, and at a rate
of 5% (five percent) for each year following the first anniversary of the
Completion Date until full repayment of the Loan.
4.3 The Borrower shall pay the Interest to the Lender annually for the first
time on the first anniversary of the Completion Date.
4.4 For the purposes of calculating the interest a year shall be set at 360
(three hundred and sixty) days.
ARTICLE 5
REPAYMENT OF THE LOAN
5.1 The Borrower shall repay the Principal Amount ("Repayment") to the Lender
in 10 (ten) subsequent semi-annual instalments of NLG 900,000.= (in words
nine hundred thousand Dutch Guilders) for the first time on the second
anniversary of the Completion Date.
5.2 The Borrower may, at its option, repay the Principal Amount to the Lender
in whole or in part ("PREPAYMENT") as of the third anniversary of the
Completion Date or, after prior written approval of the Bank, any other
business day the Borrower prefers. Any Prepayment as mentioned above will
only be allowed upon a three business days' prior written notice by the
Borrower to the Lender. Such notice will be irrevocable and will oblige
the Borrower to make the Prepayments so announced.
3
ARTICLE 6
PAYMENTS
6.1 All amounts becoming due and payable under this Agreement, shall be made
by telephonic bank transfer to the Lender's bank account as the Lender may
designate from time to time.
6.2 If any date on which an amount that is due and payable under this
Agreement is to be paid on a day which is not a business day, then the due
date for payment for such amount will be the next business day.
6.3 Any and all payments made by the Borrower pursuant to Article 4 and 5 of
this Agreement will be first applied to any costs and/or interest then due
after which the balance of the payment will be applied to repayment of the
outstanding amount Full payment shall be made in Dutch Guilders in same
day funds.
6.4 Without prejudice to the remedies available to Lender under this Agreement
or otherwise, if the Borrower fails to pay within fifteen business days
after the day the Lender has summoned the Borrower by registered mail to
pay any payment not made on or before its due date as specified in this
Agreement, the Borrower shall pay, by way of liquidated damages, in
respect of the amount of such payment due and unpaid, interest at a rate
of 11% per annum from the date any such amount became due until the date
of actual payment
ARTICLE 7
NO SET-OFF
All payments of interest and costs and any repayments of the outstanding
amounts must be remitted without any discount, reduction, set of,
counterclaim or compensation.
ARTICLE 8
DEFAULT
8.1 The entire amount of the Loan or the unpaid part thereof, including the
accrued Interest due and payable, shall be due and payable at once,
without any notice or default by way of a writ or similar instrument being
required, in the following ("EVENT OF DEFAULT"):
a. in the case of a petition being filed by third parties or by the
Borrower for bankruptcy, the Borrower being declared bankrupt,
offering a composition with creditors or applying for a moratorium
on its debts, or a voluntary arrangement having been made or an
administration order or petition thereof or any distress, execution
or other process having been levied to the same effect, or in the
case of a trustee, receiver or other encumberer being appointed for
the Borrower's affairs and if the Borrower ceases, or threatens to
cease, to continue the business;
4
b. in case any resolution is taken to dissolve and/or to wind up the
Borrower, or in case of amendments to the articles of association or
changes in the Borrower's management;
c. the Borrower transfers, sells or alienates in any way all or
substantial part of its business and/or business assets;
d. failure to pay interest, cost or outstanding amount, fifteen
business days after the day the Lender has summoned the Borrower by
registered mail to pay the interest, cost or outstanding amount due,
as the case may be;
e. in case the Guarantor loses control over the Borrower or Enraf-Nonius
B.V.;
ARTICLE 9
INTRODUCTION OF A NEW CURRENCY
9.1 The Parties agree that, except as provided in Article 9.3, the occurrence
or nonoccurrence of an event associated with economic and monetary union
in the European Community will not itself result in the nullification,
dissolution, termination or modification (whether by unforeseen
circumstances ("ONVOORZIENE OMSTANDIGHEDEN") or otherwise), in whole or in
part, of this Agreement, or give a Party the unilateral right to nullify,
dissolve, terminate or modify, in whole or in part, this Agreement.
9.2 "An event associated with economic and monetary union in the European
Community" as referred to in Article 9.1, includes, without limitation,
each (and any combination) of the following:
9.2.1 in the introduction of, changeover to or operation of a single
or unified European currency (whether known as Euro or
otherwise);
9.2.2 the fixing of conversion rates between a member state's
currency and the new currency or between the currencies of
member states;
9.2.3 the substitution of that new currency for the ECU as the unit
of account of the European Community;
9.2.4 the introduction of that new currency as lawful currency
("XXXXXX BETAALMIDDEL") in a member state (whether at the
earliest possible date or subsequently and whether in parallel
with, or as a replacement for, the currency which, before the
introduction of the new currency, was lawful currency in that
member state);
5
9.2.5 the withdrawal as lawful currency of any currency that before
the introduction of the new currency, was lawful currency in
one of the member states;
9.2.6 the disappearance or replacement of a relevant price source
for the ECU or the national currency of any member state or
applicable interest rate; or
9.2.7 any event in furtherance of any of the foregoing.
9.3 Any agreement between the Parties that amends or overrides the provisions
of this Article 9 will be effective if it is in writing and expressly
refers to this Article 9 or to European monetary union or to an event
associated with economic and monetary union in the European Community.
9.4 Each Party represents to the other Party that it is responsible for
assessing, and accepts, for itself the risks and consequences of the
occurrence or non-occurrence of any event associated with economic and
monetary union in the European Community.
ARTICLE 10
GUARANTEE
10.1 The Guarantor guarantees it will pay in case of an Event of Default all
amounts due by the Borrower to the Lender under this Agreement to the
Lender.
ARTICLE 11
MISCELLANEOUS
11.1 This Agreement constitutes the entire Agreement between the Parties in
connection with the Loan.
11.2 Headings are for ease of reference only and shall not affect the
interpretation of this Agreement.
11.3 Any notice or other communication in connection with this Agreement shall
be sufficiently given if in writing and personally delivered or sent by
airmail or by international air courier or by telefax addressed as follows
or to such other address as the parties shall have given notice of
pursuant to this clause:
LENDER:
Name : Delft Instruments Nederland B.V.
Address : Xxxxxxxxxxxx 0
0000 XX DELFT
Fax : 00 00 000 0000
6
BORROWER:
Name : Xxxxxx Healthcare B.V.
Address: c/o 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx Xxxx Xxxxx
XX 00000-0000
Fax : 0-000 000 0000
11.4 No Party shall make or permit any person connected with him to make any
announcement concerning this Agreement or any matter in connection with
this Agreement before, on or after the Completion Date except as required
by law or with the written approval of the other Party.
11.5 This Agreement may not be amended, supplemented or changed, nor may any
provision hereof be waived, except by a written instrument making specific
reference to this Agreement signed by each of the Parties.
11.6 If any provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be
of no force and effect, but the illegality or unenforceability of such
provision shall have no effect upon and shall not impair the
enforceability of any other provision of this Agreement.
11.7 No Party shall be entitled to assign or transfer its rights and
obligations hereunder to any third party save (i) with the prior written
consent of the other Party or (ii) in case of transfer or assignment by
the Lender to a company affiliated to the Lender. This Agreement shall be
binding upon the Parties, their successors in title and permitted
assignees.
11.8 This Agreement shall be binding and enforceable between Parties as of the
moment that each of the Parties has signed this Agreement.
11.9 The Parties waive their respective rights to rescind or cancel this
Agreement on the basis of sections 6:265 or 6:268 of the Dutch Civil Code.
11.10 This Agreement shall be governed by and construed in accordance with the
laws of the Netherlands.
11.11 All disputes between the parties hereto arising under or in connection
with this Agreement or further agreements resulting from this Agreement
including all disputed claims for breach by either Party under this
Agreement, shall be resolved by arbitration in accordance with the rules
of the Netherlands Arbitration Institute in Rotterdam, provided always
that the Parties have the right to settle any such dispute in summary
proceedings and the right to obtain seizure The arbitrators shall decide
according to the rules of the law. The arbitral proceedings shall be
conducted in the English language. The place of arbitration shall be
Rotterdam.
7
IN WITNESS WHEREOF, this Agreement has been executed by the Parties hereto in 3
copies on 29th May 1998.
BORROWER LENDER
Xxxxxx Healthcare B.V. Delft Instruments Nederland B.V.,
duly represented by: duly represented by:
/S/ XXX X. XXXXXXX /S/ R. VEENENGA XXXXXX
GUARANTOR Xxxxxx Healthcare Inc duly represented by:
/S/ XXXXXXX X. XXXXXXX
__________________(bank) hereby confirms its consent with this Agreement.
(BANK)
duly represented by:
__________________________
8
