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CREDIT AGREEMENT
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The undersigned:
1. The limited liability company Koninklijke Pakhoed N.V., established
in Rotterdam, hereafter known as: "borrower,"
and
2. [*]
considering:
- - that the bank is hereby offering borrower a revolving
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 are defined as below in this agreement:
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 11:00
A.M.;
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 November 2002 a facility in the amount
of a maximum of f. 50,000,000.00 (in words: fifty 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. 500,000.00 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. 500,000.00 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.
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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 immediately send a confirmation of each borrowing to the
borrower.
4.03 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.
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:
a. for short-term loans, AIBOR on the date of the borrowing,
plus a surcharge of [*] per year; 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.
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 July, 1 October, 1 January
and 1 April 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
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6.01 The credit facility shall have a term until 1 November 2002, 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 From the date of signing, 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 Accelerated redemption of any amount borrowed as short-term loan is
not permitted, except in the instances mentioned by Article 10.
6.04 Reduction of this facility, insofar as it is not (yet) borrowed,
carries no penalty.
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 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 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;
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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 this facility
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:
1. 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;
2. 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;
- 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 11.02 and Item 11.03 above.
Article 12 Figures and Other Information
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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, as have been filed by the Dutch Banking Association with
the clerk of the District Courts of Amsterdam and Rotterdam, except
for Articles 18, 19, 20, 21, 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 telefax [*]
attention
for the borrower, to the address: [*]
or telefax [*]
attention
Thus signed in duplicate at Rotterdam on 16 October 1995.
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Koninklijke Pakhoed N.V.
Mr. N. J. Westdijk