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(9)(2)
[*]
CREDIT AGREEMENT
The undersigned:
the limited liability company [*], hereafter known
as the Bank,
and
the limited liability company Pakhoed Holding N.V., established at Rotterdam,
Boompjes 60-68, hereafter known as Borrower,
stipulate to the following:
1. The Bank shall provide on 1 September 1989 a revolving credit facility
for an amount equal to NLG 50,000,000.00 (in words: fifty million
guilders) or the equivalent - in whole or in part - in any other
convertible currency available to the Bank.
2. Borrower is permitted to avail itself of the facility
a. by borrowing in current account
b. by overnight money loans
c. by fixed advances (cash loans) with a maturity of one to
twelve months
d. by long-term loans, taking into account the total term of the
facility.
The borrower is permitted at all times to repay and reborrow, whether
in whole or in part, already borrowed sums in current account, fixed
advances (cash loans) and overnight money loans or to convert them into
long-term loans, taking into account the term of the facility for all
of this.
3. The following interest and conditions apply:
a. for borrowing in current account in Dutch guilders:
a debit interest rate of [*] per year above the discount rate
for promissory notes of De Nederlandsche Bank N.V., plus a
surcharge, depending on the money market, presently at 1%.
Changes in these surcharges shall be made known in a number of
newspapers of national circulation.
b. for borrowing in current account in foreign currency:
a debit interest rate based on the Eurocurrency market rates
plus a margin of [*] per year.
Initials: [*] Initials: PAKHOED HOLDING N.V.
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c. for overnight money loans and fixed advances (cash loans) in
Dutch guilders and foreign currency: the interbank selling
prices with a comparable amount and maturity, as these are
quoted at Amsterdam (AIBOR) or London (LIBOR), plus a
surcharge of [*] per year.
d. for long-term loans:
the costs of interbank assumed loans with a comparable amount
and maturity plus a margin of [*] per year.
e. readiness commission:
[*] per quarter on the portion of the facility not borrowed,
on a daily basis.
f. No closing commission shall be charged.
g. The interest and the readiness commission shall be calculated
for the actual number of days elapsing, each month being taken
at the correct number of days and a year being taken at 360
days, insofar as no other custom exists for the particular
currency.
h. The interest per Items a, b and d shall be paid at the end of
each quarter. The interest per Item c should be paid at the
end of the agreed interest period.
i. The readiness commission shall be computed per quarter and
payable at the end of the quarter, for the first time on 30
September 1989.
4. a. The facility shall be repaid in its entirety on 31 August
1999.
b. The facility can be reduced by borrower at all times, in whole
or in part, without penalty, provided that no (more) use
thereof is made on the day of the desired early reduction,
whereupon the readiness commission is payable solely on the
reduced and unused portion.
5. Early redemption of long-term loans is permitted, provided such a
redemption is reported to the Bank in writing at least five work days
in advance. The expenses incurred by the Bank and the possibly lost
income from reinvestment of the early redeemed amounts shall be charged
to the borrower. Such redeemed amounts can be again borrowed within the
framework and the maturity of this facility.
6. The not yet redeemed portion of the principal can, with the interest
and whatever else is owed by the borrower to the Bank by reason of this
agreement, be demanded in its entirety and immediately 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 the
valuation of a writ of sequestration becomes final;
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;
7. Borrower shall be in default by the mere fact of the occurrence of one
of the instances of immediate demandability mentioned in Article 6 of
this agreement. It shall give the Bank immediate notice as soon as one
or more of the facts occur which, by virtue of the provisions of this
agreement, might make the sums borrowed under this facility demandable
and of any change in its articles of association.
8. All Dutch taxes on the interest of this facility as such, which are not
taxes which are designated in the Netherlands as Income and/or
Corporate Taxes, or as withholding of these taxes, and all expenses
which are reasonably connected with the maintenance of the rights from
the agreement and/or with collection of the amount owed by reason of
this facility, in court or out of court, shall be paid by the borrower.
9. Borrower shall hand over the consolidated annual accounts, audited by a
certified accountant, within three months of the appearance of its
annual report, but no later than six months after the end of the last
accounting year. Borrower shall furnish to the Bank, on its first
demand, the explanations which the Bank may reasonably request.
10. 1. Borrower promises to ensure that during the course of the loan
a. a ratio between its current assets and current
liabilities, including the obligations due within one
year from long and medium-long term debt, is always
maintained at 1:1, at least,
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b. a ratio between long borrowed capital and
shareholders' equity of 2.5:1 is never exceeded in
the consolidated balance sheet.
Initials: [*] Initials: PAKHOED HOLDING N.V.
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By long borrowed capital is meant here the sum of:
- 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;
- 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 future revaluation of fixed assets;
- 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
fiscal year 1973, with the accompanying explanation, which
accounting basis shall always be handled consistently in
future.
2. 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.
3. Wherever this article speaks of real property, real rights are
also understood thereby.
4. 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 under Item 2
and Item 3 above.
11. Notifications and communications with respect to this agreement should
occur in writing, by telex or telefax, unless otherwise explicitly
provided, and should be made at the addresses mentioned below:
for the Bank:
[*]
and for the borrower:
Koninklijke Pakhoed N.V.
Dept. Treasury
P. O. Box 863
3000 AW ROTTERDAM
Telex: 22112
Telefax: 010-4139829
12. Dutch law applies to this agreement and its execution. Differences
involving this agreement and the execution thereof shall be adjudicated
in the first instance by the competent magistrates of Rotterdam.
13. The "General Conditions" of the Bank, which are drawn up by the Dutch
Banking Association and have been filed with the clerk of the District
Courts of Amsterdam and Rotterdam on 11 November 1987 and which have
been made known to the borrower, are also applicable to this agreement,
but with the exception of Articles 18, 19, 20, 21 and 33. Where the
conditions deviate, this agreement shall prevail.
Thus having been stipulated and drawn up in duplicate and signed in Rotterdam,
on 1 September 1989.
CREDIT [*] PAKHOED HOLDING N.V.