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AGREEMENT ON STANDBY FACILITY
The undersigned:
I. [*] ;
II. KONINKLIJKE PAKHOED N.V.,
established in Rotterdam,
hereafter known as: the Borrower;
considering:
- - that [*] has offered to the Borrower in the letter
dated 28 September 1995 a Facility to replace the Credit Agreement
in the amount of f. 50,000,000.00, dated 28 and 29 August 1989,
which shall expire with the signing of this agreement;
- - that [*] and the Borrower wish to regulate the
conditions under which the Borrower can avail itself of the
Facility;
stipulate as follows:
ARTICLE 1 DEFINITIONS
In this agreement, the following terms shall have the meanings given below:
a. Start Date: date of general signing of this agreement.
b. Facility: standby facility up to a maximum amount of f.
100,000,000.00 (in words: one hundred million
guilders) or the countervalue thereof in
Eurocurrency, provided this Eurocurrency is
available on the interbank money markets.
c. Advance(s): amounts in guilders and/or Eurocurrency to be
loaned to Borrower by [*] under
the Facility, for periods of 1, 2, 3, 6, 9 or
12 months, in multiples of f. 5,000,000.00 (in
words: five million guilders) or the
countervalue thereof in Eurocurrency.
d. Loan(s): amounts in guilders and/or U.S. dollars to be loaned
to the Borrower by [*] under the
Facility with maturities of a minimum of two years,
in multiples of f. 10,000,000.00 (in words: ten
million guilders) or the countervalue thereof in U.S.
dollars.
e. AIBOR: (Amsterdam Interbank Offered Rates)
the interest rate such as is published by De
Nederlandsche Bank N.V. on the so-called Reuters
screen on or about 12:00 o'clock Amsterdam time
on the day of the borrowing for comparable
maturities.
f. LIBOR: (London Interbank Offered Rates)
the interest rate as is offered for comparable
maturities by banks to first-class banks in the
London interbank money market on or around 11:00
o'clock London time, two Work Days prior to the
day of borrowing.
g. End Date: 30 November 2004.
h. Work Day: a day on which the banking institutions in the
Netherlands are open and on which transactions occur
in the interbank market in Amsterdam and/or London
and/or any other place where transactions have to be
performed in fulfillment of obligations with respect
to this agreement.
ARTICLE 2 AVAILABILITY
1. The Borrower can avail itself of the Facility by borrowing Advances
and/or Loans - from the Start Date till the End Date, without
prejudice to the provisions of Article 12.
2. The Borrower is authorized - starting on 1 November 1996 - to
reduce the Facility in whole or in part, without having to pay any
damages or penalty - provided that no (further) use is made thereof
on the day of the desired accelerated reduction.
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ARTICLE 3 USE
1. The Borrower is authorized to borrow Advances and/or Loans under
the Facility, with the understanding that the total amount of
outstanding Advances and Loans can never be higher than the amount
of the Facility.
In determining the capacity still available under the Facility, the
guilder countervalue of the Eurocurrency borrowed under the
Facility is computed at the exchange rates of the Amsterdam
exchange market, which are based on the average exchange rates
(informational purposes) that are established each Work Day by De
Nederlandsche Bank N.V.
2. The Borrower shall notify [*] by telephone or telefax
of its intention to borrow Advances and/or Loans, no later than the
day of the borrowing at 12:00 o'clock as regards borrowing in
guilders and at least two Work Days prior to the day of borrowing
as regards borrowing in Eurocurrency, indicating the amount, the
desired maturity, and the desired Eurocurrency. [*] will send a
written confirmation to the Borrower as to the negotiations with
respect to Advances and/or Loans, including the principal, the
maturity, and the interest as established by [*].
3. If, on the desired day of borrowing of Advances and/or
Loans in Eurocurrency, [*] ascertains that, due to circumstances on
the interbank money market(s), the Eurocurrency desired by the
Borrower is not available, [*]'s obligation to provide the
Eurocurrency for the respective borrowing of Advances and/or Loans
is at an end. The Borrower is then entitled to borrow Advances
and/or Loans in another Eurocurrency, taking into account the
provisions of Paragraph 3.1.
4. The Advances and/or Loans borrowed under the Credit Agreement of
28/29 August 1989 as of the date of signing of this agreement are
considered to be assumed under this agreement, with the
understanding that the interest established for the Advances and/or
Loans remains in force until the end of the agreed maturity of
those Advances and/or Loans.
ARTICLE 4 COMMISSION
The Borrower shall owe, with respect to the Facility, a readiness commission of
[*] per year. This readiness commission shall be charged at the end of each
quarter on the daily portion of the Facility not borrowed, insofar as has not
been reduced per Article 2, Paragraph 2, and it shall be charged after sending a
notice against the account kept in the name of the Borrower on the books of
[*], for the first time on 31 December 1995. For the calculation
of this commission, the month is taken at the correct number of days and the
year is taken at 360 days.
ARTICLE 5 INTEREST
ADVANCES
1. a. The interest on Advances in guilders shall be equal to the
AIBOR rate, which interest is increased by a surcharge of
[*] per year.
b. The interest on Advances in Eurocurrency shall be equal to
the LIBOR rate, which interest is increased by a surcharge
of [*] per year.
c. If the AIBOR and/or LIBOR rate is not published on the day
of determining the interest, a different interest
indicator shall be established in mutual consideration,
which is increased by a surcharge of [*] per year.
2. The interest on the Advances borrowed is due on the agreed due date
of Advances.
3. In computing the interest on Advances, the prevailing practices for
currency shall be employed (guilders practice: exact [days in]
month/360 [days in] year).
4. If any interest due date is not a Work Day, the next following Work
Day shall qualify as due date, and with interest calculated for
that day (or days).
LOANS
1. The interest on Loans in guilders and/or U.S. dollars shall be
equal to the interest charged to [*] for similar
refinancing, plus a surcharge of [*] per year.
2. The interest on the Loan is due on the last day of the agreed fixed
interest period, but not less frequently than annually.
3. For the calculation of interest, the prevailing practices for
currency shall be employed (guilders practice: exact [days in]
month/360 [days in] year).
4. If any interest due date is not a Work Day, the next following Work
Day shall qualify as due date, and with interest calculated for
that day (or days).
ARTICLE 6 DISBURSEMENT
Disbursement of Advances and/or Loans shall occur by crediting a bank account to
be specified by the Borrower, using as the value date the date of arrival of the
Advances and/or Loans. This crediting forms the evidence of indebtedness.
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ARTICLE 7 REPAYMENT/REDEMPTION
1. The amount which the Borrower owes in principal, interest and
expenses to [*] by virtue of the extended Advances
and/or Loans must be paid (back) on the due date in a bank account
to be specified by [*].
2. Advances and/or Loans which are borrowed should be repaid in the
same currency as that in which they were borrowed.
3. The Advances and/or Loans borrowed under the Facility must be
repaid no later than the End Date.
ARTICLE 8 ACCELERATED REDEMPTION
1. Total or partial accelerated redemption of Advances is not
permitted.
2. Total or partial accelerated redemption of Loans is only possible
by adjustment of the cash value of the positive interest difference
between the established interest and the interest which [*] can
obtain for similar lending in the bank money/capital market for
the remaining term of the particular Loan.
ARTICLE 9 CHANGE IN CIRCUMSTANCES
If measures or regulations by the government and/or De Nederlandsche Bank N.V.
should lead to an effect which increases the cost price for the lending of
Advances and/or Loans, [*] shall inform the Borrower of this as
soon as possible and consult with the Borrower as to how the disadvantageous
consequences of this can be limited. The Borrower shall pay such extra costs
with respect to Advances and/or Loans which are issued after the date of
notification on the first demand of [*].
ARTICLE 10 OVERDUE INTEREST
If any amount is not paid by the Borrower in timely manner, the Borrower shall
owe an overdue interest of 1% per month, to be calculated on the respective
amount which the Borrower still has not paid, from the day when it becomes due
until the day of payment.
ARTICLE 11 ORDER OF PAYMENTS
All that which [*] shall receive from the Borrower with respect
to this Facility shall be used to reduce the amount owed by the Borrower by
virtue of this agreement, in the first place, the expenses incurred, next the
commission, followed by interest, and finally the principal.
ARTICLE 12 DEMANDABILITY
The outstanding Advances and/or Loans under the Facility can be immediately
demanded at all times, without prior notice or dunning, in the following cases:
a. if the Borrower fails to fulfill any obligation to [*]
by virtue of this agreement, or does not do so in timely or proper
manner, and the Borrower still does not fulfill such an obligation
within 14 days of [*] having made such a request of it;
b. if the 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 the Borrower ceases its operations or resolves on dissolution;
d. if the Borrower transfers its operations to a new or different
company or otherwise alienates them;
e. if the 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 12 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 [*] can only demand repayment
under this agreement if the aforesaid default of the Borrower is so
serious that the ability of the Borrower to satisfy its payment
obligations under this agreement with respect to [*]
is significantly jeopardized.
By long-term guarantee facility is meant in this connection a long-
term agreement between a bank and the Borrower, under which this
bank, at the terms as stipulated between the respective bank and
the Borrower, guarantees the Borrower's payment obligations with
respect to third parties.
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ARTICLE 13 FINANCIAL INFORMATION
The Borrower is obligated to send [*] each year a copy of its
(consolidated) annual accounts, after they have been drawn up.
ARTICLE 14 TAXES/EXPENSES
1. The Borrower shall pay all amounts which it owes to [*] by virtue
of the Facility to [*] without deduction and/or settlement, at the
offices of [*] or at such place as is indicated by [*].
2. All Dutch taxes which might be levied in future in the form of an
independent profit tax on the interest, not counting as taxes the
Dutch Income Taxes and/or Corporate Tax or any withholding of these
taxes, shall be charged to the Borrower.
3. All reasonably incurred expenses of collection when repayment of
the Facility is demanded shall be charged to the Borrower.
Collection expenses also include all outside expenses of legal
counsel, court costs, costs of experts and other costs of third
parties.
ARTICLE 15 INDEBTEDNESS
With respect to the indebtedness by virtue of this agreement, the books of
[*] shall qualify as full proof, unless the Borrower furnishes
counter-evidence.
ARTICLE 16 SECURITY
1. The Borrower promises to [*] that, during the term
of the Facility and until such time as the Advances and/or Loans
borrowed under the Facility have been redeemed:
a. 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 1:1;
b. on the consolidated balance sheet, a ratio between long
[term?] borrowed capital and shareholders' equity shall
never exceed 2.5:1.
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 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 most recent fiscal
year, with the accompanying explanation, produced in accordance
with the statutory provisions regarding annual accounts.
2. The Borrower promises not to take out any mortgage on its real
property situated in the Netherlands without consent of [*] on
which approval [*] may impose conditions.
3. Wherever this article speaks of real property, real rights are also
understood thereby.
4. The 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 of the present
article.
ARTICLE 17 NOTICES
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Notices and communications with respect to this agreement should, unless
otherwise expressly provided, be made in writing or by telefax at the following
addresses:
[*]
for the Borrower:
Koninklijke Pakhoed N.V.
Treasury Dept.
P. O. Box 863
3000 AW Rotterdam
Telefax: 010-4147956
ARTICLE 18 MISCELLANEOUS
1. With respect to this agreement [*] elects domicile
at the offices in Utrecht, at Croeselaan 18, and the Borrower at
the offices in Rotterdam, at Blaak 333.
2. Dutch law applies to this agreement and its execution.
3. Differences with respect to this agreement are resolved by the
competent Dutch magistrates.
4. The Borrower declares that the entering into this agreement does
not conflict with any other agreement entered into by it.
5. Unless otherwise expressly provided in this agreement, the offer
dated 28 September 1993, identification Rt/CV/2396/Pakhoed.145,
accepted by the Borrower with respect to the Facility, applies
wholly to this agreement.
Thus signed in duplicate at the respective locations on 30 November 1995
I. [*]
II. KONINKLIJKE PAKHOED N.V.