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(*)
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The undersigned:
1. The limited liability company Koninklijke Pakhoed N.V., established at
Rotterdam, hereafter known as: borrower
and
2. (*)
considering:
- - that the bank has offered the borrower, in its letter dated 3 June
1996, a multi-currency standby facility,
- - that the bank and borrower wish to regulate the conditions under which
borrower can avail itself of this facility;
stipulate to the following:
Article 1 Definitions
1.01 The following terms in this agreement are defined as follows:
a. AIBOR: the interest percentage for interbank deposits of comparable
maturity in guilders, as ascertained by De Nederlandsche Bank N.V. on
the day of borrowing at 12:00 A.M. (Dutch time);
b. Eurocurrency: freely convertible U.S. Dollars, German Marks, Pounds
Sterling, Belgian Francs, French Francs, Swiss Francs, Swedish Krone
and Australian Dollars.
c. LIBOR: the interest percentage at which interbank deposits in identical
currency are offered for comparable amounts and maturities by the banks
to first-class banks in the London Interbank Market at 11:00 A.M.
(London time), two work days prior to the borrowing day;
d. Limit: the maximum amount of the facility, expressed in Dutch guilders,
which may be (still) issued at any time, taking into account the
provisions of Article 6;
e. Countervalue: the result of the outstanding amounts in Eurocurrency,
multiplied by the selling price as is established by the bank for the
sale of Eurocurrency in return for Dutch guilders at 11:00 A.M.
f. Due Date(s): the date(s), by 12:00 A.M., on which borrower must pay
(back) any amount that it owes to the bank by
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reason of this agreement.
g. Work Day: a day on which banks in Amsterdam, London, and
the place where any amount must be paid by virtue of this
agreement, are open for bank business.
Article 2 Amount
2.01 The bank shall provide to borrower as of the date of signing
of this agreement and up to 15 July 1999 a facility in the
amount of a maximum of f. 100,000,000.00 (in words: one
hundred million guilders) or the Countervalue thereof in
Eurocurrency, under the following conditions and provisions.
Article 3 Form
3.01 Borrower can avail itself of the facility by borrowing:
a. in the form of one or more short-term loans in Dutch
guilders, for periods of 1, 3, 6 or 12 months, in amounts of
f. 1,000,000.00 or a multiple thereof;
b. in the form of one or more short-term loans in Eurocurrency,
for periods of 1, 3, 6 or 12 months, in amounts with a
Countervalue of f. 1,000,000.00 or a multiple thereof,
rounded off to 100,000 in the particular currency.
3.02 Borrower must select the maturities of short-term loans so
that they do not exceed the term of the facility.
Article 4 Availability/Disbursement
4.01 The facility is only (still) available if borrower satisfies the
ratios and obligations to the bank as stipulated in Article 11 and
none of the events mentioned in Article 10 has occurred.
4.02 If borrower wishes to borrow one (or more) short-term
loan(s) in Dutch guilders, it shall inform the bank of this
by telephone, no later than 10:00 A.M. on the day of
borrowing, indicating the desired amount and the desired
period, this communication being binding on borrower on the
day of the borrowing; the bank shall notify the borrower as
soon as possible on the day of borrowing what the prevailing
interest rate is for the desired borrowing in accordance
with Article 5. Borrowing in the form of short-term loans in
Dutch guilders can only be done within the Limit. The bank
shall send a confirmation of each borrowing to Koninklijke
Pakhoed N.V., according to the form included in Exhibit A.
Such borrowing is regulated by the provisions contained in
the respective confirmation, insofar as these differ from
the provisions of this agreement.
4.03 If borrower wishes to borrow one (or more) short-term
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loan(s) in Eurocurrency, it shall inform the bank of this by
telephone, no later than two work days prior to the borrowing
before 10:00 A.M., indicating the desired currency and period, this
communication being binding on borrower on the day of the
borrowing; the bank shall notify the borrower as soon as possible
on the day of said communication what the prevailing interest rate
is for the desired borrowing in accordance with Article 5. The bank
shall include the relevant data for this loan in a written
confirmation. Borrowing in the form of short-term loans in
Eurocurrency can only be done within the Limit and insofar as the
bank has funds up to the desired amounts and for the desired
periods. The bank shall send a confirmation of each borrowing to
Koninklijke Pakhoed N.V., according to the form included in Exhibit
A.
4.04 In event of borrowing in Eurocurrency, the bank is entitled
to withhold from borrower an amount which is considered
necessary, within reasonable bounds, to cover exchange rate
risk. Likewise, the bank shall compute the Countervalue on
the first Work Day of each calendar month. The amount thus
computed is taken into consideration when determining
whether borrowing is still possible within the Limit.
4.05 In the event that the Countervalue computed per
Article 4.04, together with the total of the amounts
borrowed in Dutch guilders, exceeds the Limit, borrower
shall, at first demand of the bank, remit the amount by
which the maximum credit facility is exceeded to a deposit
account as indicated by the bank. In the latter case, a
credit interest shall be paid on the thus-remitted amounts
at the applicable market rates for borrowers. These amounts
shall be paid back on first demand of borrower as soon as
and as long as it appears that the exceeding of the maximum
amount of the facility has diminished on a subsequent
accounting date.
4.06 The disbursement of the short-term loan(s) shall occur by crediting
a bank account, to be specified by borrower, using the starting
date of the particular loan as the value date.
Article 5 Interest and Commission(s)
5.01 Borrower shall pay the following debit interest rate on the amounts
in Dutch guilders borrowed during the term of this agreement:
for short-term loans, AIBOR on the date of the borrowing, plus a
surcharge of [*] per year; this debit interest rate is included
in the confirmation sent out for the particular short-term loan,
and it is due on the last day of the period for which the
short-term loan is borrowed and should be paid at the same time as
the repayment of the
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principal on the Due Date of the short-term loan.
5.02 Borrower shall pay, on the amounts in Eurocurrency borrowed as
short-term loan(s) during the term of this agreement, a debit
interest rate equal to LIBOR, as ascertained two days prior to the
day of borrowing, plus a surcharge of [*] per year. This debit
interest rate is due on the last day of the period for which the
short-term loan is borrowed and should be paid along with the
repayment of the principal on the Due Date of the short-term loan,
in the same currency as the principal.
5.03 The interest for borrowing under this facility shall be computed on
the number of actual days elapsed, for Dutch guilders on the basis
of a year of 360 days and for Eurocurrency according to the market
practices applying to the particular currency.
5.04 Borrower shall owe, at three months from the date of signing of
this agreement, a readiness commission of [*] per year on the
portion of the facility not borrowed on a daily basis, to be paid
at the end of the respective period on 1 January, 1 April, 1 July
and 1 October of each year.
5.05 As of the date on which any reduction of this facility takes effect
as provided in Article 6, the readiness commission is no longer due
on the amount of that reduction.
Article 6 Term, Reduction and Accelerated Redemption
6.01 The credit facility shall have a term until 15 July 1999, on which
date borrower shall have paid to the bank the amount still owed by
it by reason of this facility and this agreement, in a lump sum.
6.02 If and insofar as borrower has obtained a definitive financing for
the purchase price of the stock of Univar Corporation, the limit
shall be reduced by at least 1/3 of the amount of said financing
and the amounts borrowed under this facility shall be redeemed on
their due date, if and insofar as a remainder has been created by
said reduction of the limit.
Furthermore, borrower is entitled at all times to reduce this
facility in whole or in part, at no penalty, provided it makes no
(further) use thereof on the date of the desired accelerated
reduction.
Article 7 (Re) Payment
7.01 Borrower shall make all payments which it owes by virtue of
this agreement to the bank on the Due Dates prior to
12:00 o'clock (by giro), without any setting off of debt or
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any other limitation or conditions of any kind. All Dutch taxes on
the interest of this facility as such, not being taxes which are
designated in the Netherlands as Income and/or Corporate Tax or as
withholding tax, shall be charged to the borrower.
7.02 In event of accelerated demand for repayment as provided in Article
10, all amounts owed to the bank shall be immediately paid off.
7.03 Without prejudice to the provisions of Article 10, borrower shall
repay to the bank each amount borrowed under this facility as a
loan on the Due Date of that particular loan.
7.04 If borrower wishes to again borrow a short-term loan or portions
thereof for a subsequent period, the repayment of that loan or the
particular portion thereof shall not in actuality occur and the
repayment and the renewed provision of funds shall be considered to
take place at the same time. In such instances, Article 4 applies
accordingly.
7.05 If any Due Date is not a Work Day, the next following Work Day
shall qualify as Due Date, unless the next following Work Day falls
in a new calendar month, in which case the Work Day preceding the
respective Due Date shall qualify as the Due Date.
7.06 Each payment shall be used, in the first place, to satisfy any
expenses, then to pay for commissions and interest, and finally to
redeem the principal.
Article 8 Nontimely Payments
8.01 In event of nontimely payment by borrower of any amount owed to the
bank by it in virtue or in consequence of the present agreement,
borrower shall be assessed a penalty interest of 1% per month on
the amount paid late for the time during which this remains unpaid;
for the outstanding amount, this penalty interest takes the place
of the interest applying to the particular loan in Article 5; it is
calculated up to the day of payment, portions of a month also being
computed according to the number of days actually elapsed on the
basis of a month of 30 days, and it should be paid at the same time
as the payment of the last paid amount.
Article 9 Expenses, Proof of Indebtedness
9.01 All expenses which are reasonably connected with collection of the
amount owed by virtue of this credit facility in court or out of
court, and/or incurred by the bank in maintaining and exercising
its rights, shall be charged to borrower.
9.02 Except for counter-evidence to be furnished by borrower, an
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extract from the books produced and signed by the bank shall
qualify as full proof of the amounts owed by borrower by reason or
virtue of this agreement, and also insofar as the magnitude and
reason thereof are concerned.
Article 10 Accelerated Demand for Repayment
10.01 All amounts borrowed under this facility with the interest and
whatever else the borrower owes the bank by reason of this
agreement can be demanded immediately and in its entirely by the
bank, without any summons or notice being required:
(a) if borrower fails to fulfill any obligation to the bank by virtue
of this agreement, or does not do so in timely or proper manner,
and borrower still does not fulfill such an obligation within
fourteen days of the bank's having made such a request of it;
(b) if borrower requests suspension of payment, files for bankruptcy,
is declared bankrupt, or if its real property or any significant
portion thereof can be seized or if a writ of sequestration is
converted into a garnishment order;
(c) if borrower ceases its operations or resolves on dissolution;
(d) if borrower transfers its operations to a new or different company
or otherwise alienates them;
(e) if borrower is in default of any payment obligation by virtue of
any monetary loan provided or to be provided by third parties, any
financing facility, or any long-term guarantee facility, each with
an original maturity of more than twelve months, in consequence of
which the respective monetary loan and/or facility is demanded to
be repaid in its entirety at an accelerated date, with the
understanding that the bank can only demand repayment under this
agreement if the aforesaid default of borrower is so serious that
the ability of borrower to satisfy its payment obligations under
this agreement with respect to the bank is significantly
jeopardized.
By long-term guarantee facility is meant in this connection a
long-term agreement between a bank and borrower, under which this
bank, at the terms as stipulated between the respective bank and
borrower, guarantees borrower's payment obligations with respect to
third parties.
10.02 Borrower is obligated to notify the bank immediately of the
occurrence of the aforesaid circumstances.
Article 11 Ratios/Negative Pledge
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11.01 Borrower promises to ensure that, during the term of the
Loan;
- - on the consolidated balance sheet, a ratio between the current
assets and current liabilities, including obligations maturing
within one year by reason of long and medium-term debt, shall
always be maintained at a minimum of one to one (1:1);
- - on the consolidated balance sheet, a ratio between long [term?]
borrowed capital and shareholders' equity shall never exceed two
point five to one (2.5:1).
By long borrowed capital is meant here the sum of:
A. all debts of long and medium-long term, excluding the obligations
falling due within one year by reason of long and medium-long
debts, which should be listed among the current liabilities;
B. one hundred percent (100%) of the provisions, minus the provision
for exchange differences and that portion of the provisions which
is listed among the shareholders' equity, as indicated below.
By shareholders' equity is meant here the sum of:
- share capital;
- share premium reserves;
- other free reserves, with the exception of a reserve
resulting from revaluation of fixed assets;
- fifty percent (50%) of the taxation provision.
The aforesaid ratios should always be read in agreement with and on
the basis of the balance sheet and profit and loss statement,
officially approved by the accountants, for the most recent fiscal
year, with the accompanying explanation, produced in accordance
with the statutory provisions regarding annual accounts.
11.02 Borrower promises not to take out any mortgage on its real property
situated in the Netherlands without consent of the bank, on which
approval the Bank may impose conditions.
11.03 Wherever this article speaks of real property, real rights
are also understood thereby.
11.04 Borrower promises that all companies in which it directly possesses
or will possess the majority of the voting capital, or in which it,
together with or by means of one or more companies, whether or not
directly associated with each other, in which it possesses the
majority of the voting capital, possess or shall possess the
majority of the voting capital, shall assume the same obligations
as mentioned
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under Item 2 and Item 3 above.
Article 12 Figures and Other Information
12.01 Borrower is obligated to send to the bank each year, within six
months of the closing out of the accounting year, its consolidated
annual accounts approved by outside accountant. Furthermore,
borrower, if it has borrowed any money under this credit facility,
is obligated to furnish the bank the explanations which the bank
may reasonably request of it, upon its demand.
Article 13 Banking Transactions
13.01 The bank has the "right of first refusal" as regards swap
transactions with respect to this facility.
Article 14 General Conditions
14.01 The General Conditions dated 22 December 1995 shall apply to this
agreement, unless otherwise expressly stipulated herein, as have
been drawn up and filed by the Dutch Banking Association on 11
November 1987 with the clerk of the District Court of Amsterdam,
and of which borrower declares that it has received a copy, except
for Articles 18, 19, 20, 21, 31 and 33.
Article 15 Notices
15.01 All notices and communications with respect to this agreement
should be done in writing, per telex or telefax, unless otherwise
expressly determined, and should be sent to:
for the bank, to the address [*]
or telex [*]
attention
or telefax [*]
for the borrower, to the address: Treasury Dept.
P. O. Box 863,
3000 AW ROTTERDAM or
Blaak 333
3011 GB ROTTERDAM
or telefax 010-4147956
attention Treasury Dept.
Thus signed in duplicate at Rotterdam on 4 June 1996.
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[*] Koninklijke Pakhoed N.V.
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[*]
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Exhibit A
Re: Configuration of Short-Term Loans
Dear Sirs:
Re: Standby Facility
With reference to our telephone conversation today, we hereby confirm that we
are providing you a rollover loan in the framework of the standby facility, as
established in the agreement concluded between Koninklijke Pakhoed N.V. and ING
Bank N.V. on .. June 1996, under the following conditions:
Amount:
Maturity:
Interest:
Payment:
Sincerely
[*]
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[*]
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Exhibit B
ACKNOWLEDGEMENT OF DEBT
The undersigned
the limited liability company Koninklijke Pakhoed N.V., established in
Rotterdam, hereafter known as "the borrower"
declares that it has received a loan and accordingly owes the ING Bank N.V.,
established in Amsterdam, hereafter known as "the bank," the sum of f
(in words: ) and that it is obligated to:
1) Pay to the bank a fixed interest of ...% per year on the aforesaid
sum or the unredeemed portion thereof, becoming due semiannually on
the first of January and the first of July of each year, for the
first time on next ..., for the period elapsing from today on.
2) To redeem said amount at f. ... on ..., unless the duration of the
loan is extended.
3) Furthermore, this loan is subject to the conditions and provisions
reported in the agreement signed between the borrower and the bank
on ... to provide a credit facility of f. 100,000,000.00.
Thus signed in Rotterdam, on ...
the borrower:
Borrower's signature:)1
N.B.)1. Each signer for borrower should sign and print their name here:
Good for ... guilders with interest and expenses and to sign this statement.