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(9)(3)
[*]
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The undersigned:
1. The limited liability company Koninklijke Pakhoed N.V., established
at Rotterdam, hereafter known as: borrower
and
2. The limited liability company [*], established in
Amsterdam, hereafter known as: the bank,
considering:
- - that the bank has offered the borrower, in its letter dated 17
August 1995, a multi-currency standby facility to replace the
standby facility of NLG 50 million, dated 5 July 1991, and the
standby facility of NLG 50 million, dated 16 October 1991, which
hereby expire.
- - 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 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 1 December 2005 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 medium-term loans in Dutch guilders,
with maturities of 2, 3, 4 or 5 years, in amounts of f.
1,000,000.00 or a multiple thereof;
c. 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.
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3.02 Borrower must select the maturities of short-term and medium-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) medium-term loan(s) in
Dutch guilders, it shall give the bank written notification of this
no more than two weeks before the borrowing, indicating the date of
borrowing, the desired amount and the desired period; the bank
shall inform borrower as soon as possible, but no more than three
weeks prior to the day of borrowing, what the interest rate is for
the desired borrowing according to Article 5. After establishing
the interest and acceptance thereof by borrower, said communication
is irrevocable. Borrowing in the form of medium-term loans in Dutch
guilders can only be done within the Limit and against signing of
an acknowledgement of debt in accordance with the form included in
Exhibit B of this agreement. Such borrowing is regulated by the
provisions included int he respective acknowledgement of debt,
insofar as these differ from the provisions of this agreement.
4.04 If borrower wishes to borrow one (or more) short-term 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.
4.05 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.
4.06 In the event that the Countervalue computed per Article 4.05,
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.
4.07 The disbursement of the short-term and/or medium-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.
4.08 The short-term loans borrowed under the agreements of 5 July 1991
and 16 October 1991 as of the date of signing of this agreement, in
a total amount of NLG 20,000,000 (in words: twenty million
guilders), are considered as being assumed under this agreement,
with the understanding that the interest applying to these
short-term loans (i.e., established under the aforesaid previous
agreements) remains in force until the end of the particular
maturity of the short-term loans.
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:
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a. 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 principal on the Due Date of the short-term loan.
b. for medium-term loans, "cost of funds" of the bank, plus a
surcharge of [*] per year; this debit interest rate is included in
the acknowledgement of debt signed for the particular medium-term
loan, being due semiannually and charged to account after six
months, on 1 July and 1 January of each year.
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 (as of 1
December 1998, this commission amounts to [*] 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 1 December 2005, 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 As of 1 December 1996, borrower has the right to reduce this
facility in whole or in part, provided it makes no (further) use
thereof on the date of the desired accelerated reduction.
6.03 Borrower has the right to redeem the amounts borrowed as
medium-term loans on an accelerated basis, provided it gives the
bank written notice of its intention at least one month in advance.
Such redeemed amounts can be again borrowed within the framework
and the term of this facility.
6.04 Accelerated redemption of any amount borrowed as short-term loan is
not permitted, except in the instances mentioned by Article 10.
6.05 Reduction of this facility, insofar as it is not (yet) borrowed,
carries no penalty.
6.06 In event of accelerated redemption of a medium-term loan, borrower
shall pay to the bank the cash value of the difference between the
interest yet to be paid during the remaining term of the loan and
the interest which the bank can obtain by lending the amount to be
redeemed at an accelerated pace to another first-class bank for a
period equal to said remaining term. The cashing out shall occur at
the last-mentioned interest rate.
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 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 or medium-term loan
or portions thereof for a subsequent period, the repayment of that
loan or the particular portion thereof
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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 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
11.01 Borrower promises to ensure that, during the term of the Loan;
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- - 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 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 11 November 1987, shall apply to this
agreement, unless otherwise expressly stipulated in this agreement,
as have been filed by the Dutch Banking Association on 11 November
1987 with the clerk of the District Courts of Amsterdam and
Rotterdam, 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
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or telefax [*]
attention
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 5 December 1995.
[*] 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 [*]
on 5 December 1995, 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.