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REVOLVING CREDIT FACILITY AGREEMENT
For
NLG 50,000,000
DATED MAY 20, 1996
Between
KONINKLIJKE PAKHOED N.V.
As Borrower
and
[*]
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THIS REVOLVING CREDIT FACILITY ("THE FACILITY AGREEMENT") is made on the 20th
day of May 1996 ------
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BETWEEN
1/ KONINKLIJKE PAKHOED N.V., a company incorporated in The Netherlands and
whose principal office is at Blaak 333, 3011 GB Rotterdam ("the Borrower"),
and
2/ [*]
IT IS HEREBY AGREED as follows:
1. FACILITY & AMOUNT
Subject to the terms and conditions of this Facility Agreement the Bank is
putting at the disposal of the Borrower a Revolving Credit Facility ("the
Facility") for an amount not exceeding
NLG 50,000,000 (fifty million euro-Dutch Guilders),
or its NLG equivalent for outstanding principal amounts in other freely
available Eurocurrencies.
The Bank has the right to demand, at any drawdown or renewal date, from the
Borrower partial repayment of principal if and as far as outstanding
principal amounts under the Facility when converted back into NLG (the
Facility's reference currency), using the Bank's prevailing market spot
forex rates for that purpose, would exceed the amount of the Facility with
such partial repayment being equal to the amount of such excess.
The Facility shall be utilised by the Borrower for its general corporate
purposes.
Amounts drawn hereunder may be repaid and redrawn during the life of the
Facility Agreement.
2. CONDITIONS PRECEDENT
The obligations of the Bank hereunder to make the Facility available to the
Borrower is also subject to the condition that the Bank shall have
received, in form and substance acceptable to it, the following documents:
- a copy of the statutes and articles of incorporation of the Borrower;
- a list of authorised signatories of the Borrower and their respective
specimen signatures.
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3. DRAWDOWN AND DRAWING RENEWALS
Notices of drawings shall be given to the Bank verbally by an
authorised officer of the Borrower no later than 10:00 am Brussels time
two Business Days prior to the intended drawdown or renewal date. Once
given, notices of drawings are irrevocable. Drawings must be confirmed
in writing or by telefax by an authorised signatory of the Borrower as
soon as possible but no later than the end of the Business Day
following the date of the notice of drawing.
4. TERMS OF DRAWINGS AND SUBSEQUENT RENEWALS (ROLLOVERS) THEREOF
4.a. AMOUNTS
Minimum amounts of individual drawings shall be NLG 1,000,000 or the
equivalent thereof and shall be in integral multiples of NLG 1,000,000
or the equivalent thereof. Drawings and subsequent renewals thereof
shall be subject always to aggregate outstanding principal amounts
never exceeding the amount of the Facility.
4.b. INTEREST RATE
The Borrower shall pay interest on the outstanding principal amounts of
the Facility, in the same currency as the currency of the respective
drawings or renewals thereof, at a rate per annum equal to the
aggregate of the applicable Libor (London Interbank Offered Rate) or
Bibor (Brussels Interbank Offered Rate) for the Interest Period
concerned plus the margin.
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4.c. MARGIN
shall be [*] p.a. [* percent per annum]
4.d. APPLICABLE LIBOR/BIBOR OR ALTERNATIVE RATE
i) for euro-NLG or other euro-currency drawings or renewals thereof
the applicable rate shall be euro-NLG resp. the relevant
euro-currency Libor for the Interest Period concerned as quoted on
the relevant pages of Reuters for the relevant euro currency and
Interest Period at 11:00 a.m. London time 2 business days before
the relevant drawing or drawing renewal date;
ii) for BEF drawings or renewals thereof the applicable rate shall be
BEF Bibor for the Interest Period concerned as quoted on the page
"BELO" of Reuters at 11:00 a.m. Brussels time 2 business days
before the relevant drawing renewal date;
iii) if the relevant pages were not to provide an applicable Libor resp.
Bibor quotation, the Bank shall conclusively provide such quotation
itself as best reflecting the then prevailing market conditions;
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iv) if the duration of an Interest Period selected by the Borrower
hereunder does not correspond to the standard interest period
duration on which a relevant quotation is based then the Bank
shall have the right to adjust the applicable Libor resp. Bibor
for such discrepancy.
4.e. INTEREST PERIODS
Subject as provided below, each period in respect of which interest is
payable shall be of 1, 2, 3, 6 or 12 months duration as the Borrower
may select. If the Borrower fails to select an Interest Period in
accordance with the above, or at all, such Interest Period shall be
for a duration of 1 month (and the related outstanding principal shall
be in the currency it was outstanding in for the previous Interest
Period). The first Interest Period(s) shall commence on the drawdown
date; each subsequent Interest Period shall commence on the expiry
date of the preceding Interest Period relative thereto.
4.f. INTEREST DUE DATES AND INTEREST COMPUTATION METHOD
i) Interest shall be payable by the Borrower in arrears on the last
day of each Interest Period.
ii) Interest shall accrue from day to day and be computed on the
basis of a year of 360 days and for the actual number of days
elapsed.
4.g. OVERDUE INTEREST
In the event that the Borrower fails to pay any sum owing on any due
date hereunder the Bank shall be entitled to charge interest on such
sum at the rate of the aggregate of (a) the Bank's cost of funding, as
conclusively determined by the Bank, such sum until it is paid, plus
(b) the Margin plus (c) 1.5% p.a. The Bank may select such Interest
Periods for such unpaid sum (and hitherto such interest compounding
periods) as it deems appropriate in the circumstances.
5. EXPIRY DATE
The Bank's commitment hereunder shall terminate on December 31, 2002
and any amounts then outstanding shall be fully and finally repaid by
the Borrower on that date in any event together with interest, fees and
any other sums then owing under this Facility Agreement.
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6. PREPAYMENT
The Borrower may prepay any sums due hereunder (together with interest
on that sum accrued to the date of prepayment) provided the Bank
receives at least 7 Business Days advance notice in writing of such
intention to prepay, the prepayment amount and the prepayment date (and
provided always that the Borrower pays to the Bank the cost incurred by
the Bank in breaking its matching funding arrangements, such cost to be
conclusively -- save manifest error -- determined by the Bank).
7. CANCELLATION OF UNDRAWN AMOUNTS
At the option of the Borrower and exercisable by written notice to the
Bank, the undrawn amount of the Facility, or any part thereof, may be
cancelled without any penalty -- commencing as from the date falling 1
year after the signing date of this Facility Agreement -- upon the
giving of 30 days advance notice.
8. BUSINESS DAY
Means a day on which commercial banks are open for business in the
Brussels and London Interbank markets and in the principal financial
centre of the currency in which a relevant drawing is to be denominated.
If any day on which a payment is otherwise due hereunder is not a
business day such payment shall be made on the next succeeding Business
Day (unless that day would thereby fall in the next calendar month in
which case payment shall be made on the preceding business day).
9. FEES AND EXPENSES
9.a COMMITMENT FEE
A commitment fee of [*], calculated on the daily undrawn portion of
the Facility commencing from the signing date of this Facility
Agreement, is payable by the Borrower in NLG in arrears on the last
business day of each calendar quarter and on the date of termination of
the Facility Agreement (including the Expiry Date). Computation basis
will be a year of 360 days for the actual number of days elapsed;
9.b. OTHER EXPENSES
The Borrower will fully indemnify the Bank on its first demand for any
reasonable out of pocket expenses or costs of whatever nature and
wherever or however incurred by the Bank in the protection, preservation
or enforcement of any of its rights or revenues hereunder and/or in the
recovering of any amounts due hereunder including legal, funding
breakage, and other ad hoc expenses.
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10. PAYMENTS
10.a. Except as otherwise provided herein any payment to be made by the
Borrower under this Facility Agreement shall be made in the currency in
which it is contractually due, in immediately available funds during
normal banking hours on the due date. If payment is nevertheless made in
a different currency than the due currency, then the Borrower shall
fully compensate the Bank for foreign exchange costs incurred for
converting such currency into the due currency, and immediately pay to
the Bank any resulting shortfall against the contractual due amount.
10.b. All payments to be made by the Borrower shall be made to and in favour
of the Bank at such accounts and before such hours as the Bank shall
notify to the Borrower from time to time;
10.c. All payments by the Borrower hereunder shall be made in full without
set-off, counterclaim, withholding or any other deduction whatsoever
(other than taxes on the overall income of the Bank). If the Borrower is
compelled by law to make a deduction or withholding from any amount
payable to the Bank then the Borrower will immediately pay such
additional amounts (other than taxes on the overall income of the Bank)
as will result in the Bank receiving the full amount it would have
received had no such deduction or withholding been made. In such
circumstances, the Borrower will immediately provide the Bank with a
certificate of the amount deducted and generally provide the Bank with
satisfactory evidence of the receipt of the payment of such deduction by
the relevant authority.
11. CHANGE IN CIRCUMSTANCES
The Borrower will on first demand pay to the Bank such amounts as the
Bank may from time to time certify as necessary to compensate it for any
additional cost or reduction of return in connection herewith arising as
a result of compliance with any future law, regulation, treaty or
official directive or request (whether or not having the force of law)
including, without limitation, those relating to capital adequacy,
liquidity, reserve and special deposit requirements, funds and taxes
(other than taxes on the overall net income of the Bank) and any rule or
request of an organisation whose rules are binding on the Bank. The Bank
shall immediately upon it becoming aware of such costs or reduction,
notify the Borrower in writing thereof and, upon the introduction
thereof, supply calculations of such cost or reduction in reasonable
detail.
In the event that the Bank elects to demand such compensation for
increased cost from the Borrower, the Borrower will have the right to
prepay all outstandings under the Facility, together with any interest
and any other amounts due to the Bank, upon the giving of 2 (two)
business days' written advance notice and provided that the Borrower
compensates the Bank for any intermediate so increased cost through the
date of such prepayment. Upon such prepayment, this Facility Agreement
shall be terminated.
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12. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants ("staat ervoor in") to the Bank that:
12.a. the execution and performance of this Facility Agreement are within its
authority, have been and are duly authorised by all necessary corporate
action, do not contravene any provision of law, the Borrower's Articles
of Association or any agreement binding on it and create and constitute
valid and enforceable obligations. The Borrower also certifies that the
person(s) signing this Facility Agreement for and on its behalf is (are)
duly empowered and has (have) proper signing authority(ies) to do so;
12.b. it has full power and authority to own its assets and to carry on its
business as it is now being conducted;
12.c. it has all consents and licenses which may be necessary for it to enter
into this Facility Agreement and to meet its obligations hereunder;
12.d. it is not in default or likely to be in default under any agreement or
instrument binding upon it or on any of its assets or revenues, which is
material in the context of this Facility Agreement;
12.e. no litigation, arbitration or administrative proceeding is taking place,
pending of, to its knowledge, threatened against it or any of its assets
or revenues, which is material in the context of this Facility
Agreement;
12.f. neither the Borrower, nor any of its assets or revenues, is entitled to
immunity from any legal action or proceeding.
The representations and warranties under Clauses 12.a, 12.b, 12.c and 12.f
above shall be deemed to be repeated by the Borrower on and as of the dates of
each drawdown and of each drawing renewal notice hereunder, as if made with
reference to the facts and circumstances existing at such dates.
13. UNDERTAKINGS
The Borrower will:
13.a. notify the Bank immediately of the occurrence of any event of default
as per Clause 15 hereof;
13.b. supply the Bank with its audited consolidated Profit & Loss Account and
Balance Sheet within 180 days of the accounts date or as soon as they
are published whichever is earlier. The Borrower will also provide the
Bank with semi-annual figures as soon as these are available, and will
provide the Bank with such other information concerning the Borrower's
business as the Bank may reasonably request from time to time;
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13.c not create any mortgage upon its real estate and other immovable
property rights ("onroerende zaken en beperkle zakelijke rechten op
onroerende zaken") in the Netherlands without the consent of the Bank,
which consent may be given subject to the fulfilment of certain
conditions.
The Borrower covenants that the same condition as mentioned under Clause 13.c
above shall apply to all the companies in which the Borrower owns or will own
the majority of the voting rights either directly or through or together with
one or more companies in which the Borrower owns or controls as ultimate owner
the majority of the voting rights.
14. FINANCIAL COVENANTS
The Borrower covenants that during the lifetime of this Facility Agreement it
will:
a. maintain in its consolidated balance sheet the ratio between the current
assets ('vlottende activa') and current liabilities ('vlottende
passiva'), including the current portion of long term debts, at no less
than one to one (1:1);
b. not exceed in its consolidated balance sheet a ratio between long term
liabilities and shareholder's equity of two and one half to one (2.5:1).
Long term liabilities as used in this Clause 14.b mean the aggregate of:
- - all long term debts but excluding the current portion of long term
debts which latter will be included in the current liabilities;
- - one hundred percent (100%) of the provisions minus the provision for
exchange differences and minus that part of the provisions which is
included in the shareholders' equity as mentioned below.
Shareholders' equity as used in this Clause 14.b means the aggregate of:
- - capital paid up and called
- - share premium reserve
- - other reserves, other than legal reserves and excluding a reserve as
a consequence of revaluation of fixed assets;
- - fifty percent (50%) of the provisions for deferred taxes.
The above ratios are to be interpreted at any time in accordance with and on
the basis of the consolidated balance sheet and consolidated profit and loss
account as approved by external auditors of the Borrower over the most recent
financial year with the notes thereto, composed in compliance with the Dutch
legal requirements for financial statements.
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15. EVENTS OF DEFAULT
In any of the following events shall have occurred and, where a grace period has
been mentioned, has not been remedied within the stated grace period, such event
shall constitute an Event of Default and the Bank may, as long as such Event of
Default is continuing, by written notice to the Borrower effective upon receipt
thereof by the Borrower, declare the outstanding principal amounts plus interest
accrued thereon upto the date of payment and any other amounts payable under
this Facility Agreement to be immediately due and payable, whereupon the same
shall become immediately due and payable and the Bank's obligations hereunder
shall immediately terminate:
a. if the Borrower is in default in the due performance of any obligation
under this Facility Agreement and such default is not remedied within 14
days after receipt by the Borrower of written notification thereto given
by the Bank;
b. if the Borrower applies for general suspension of payments, applies for
bankruptcy, is adjudicated bankrupt or if an executory attachment
("executoriaal beslag") is made on its real estate or on a substantial
part thereof or if a conservatory attachment ("conservatoir beslag")
thereon will have become enforceable;
c. if the Borrower ceases to carry on its business or decides to winding
up, liquidation or dissolution procedures for its company;
d. if the Borrower transfers its business to a new or other company or
disposes of its business in any other manner;
e. if any indebtedness in respect of borrowed moneys of the Borrower or any
long term guarantee facility is accelerated as a consequence of an event
of default under the terms thereof, it being understood however that the
Bank is only entitled to declare an Event of Default under this Facility
Agreement in the event such default of the Borrower as meant hereabove
materially affects its capability to perform its payment obligations
under this Facility Agreement towards the Bank.
Borrowed moneys as used in this Clause 15.e mean any loan or
indebtedness for borrowed money other than this Facility having an
original maturity of more than 12 months and long term guarantee
facility means an agreement with an original term of more than 12 months
between a bank and the Borrower pursuant to which the bank subject to
the terms agreed between such bank and the Borrower guarantees payment
obligations of the Borrower towards third parties.
16. WAIVERS, REMEDIES CUMULATIVE
No failure or delay by either party hereto in exercising any of its
rights or powers under this Facility Agreement shall operate as waiver
thereof. The rights and remedies of the Bank under this Facility
Agreement are cumulative and not exhaustive of each other or of any
rights or remedies provided by law.
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17. SEVERABILITY OF PROVISIONS
If any provision of this Facility Agreement is or becomes invalid, this
shall not affect the validity of any other provision of this Facility
Agreement.
18. ASSIGNMENT AND TRANSFER
The Bank may, subject to the consent of the Borrower which will not be
unreasonably withheld, assign or transfer all or any part of its rights
and obligations to reputable banks or financial institutions with a
maximum number of three (including the Bank). All costs, expenses, fees
and other charges are for the account of the banks involved and there
will be no additional tax consequences for the Borrower.
19. "GENERAL CONDITIONS"
Unless explicitly provided otherwise herein, this Facility Agreement
shall be governed also by the General Conditions as filed on December
22, 1995, by the Dutch Bankers Association at the Registrars' Office of
the District Courts of Amsterdam and Rotterdam, with the exception of
its Articles 18, 19, 20, 21, and 33.
20. GOVERNING LAW AND JURISDICTION
This Facility Agreement shall be governed by and construed in accordance
with Dutch Law and the courts of Rotterdam, or at the option of the
Borrower, the courts of Brussels will be competent. The Bank will
however be free to initiate and hold proceedings before any other court
it deems appropriate for protecting its rights and claims hereunder. In
the latter regard, the Borrower waives to the fullest extent permitted
by law any immunity it or any of its assets or revenues may have now or
in the future in connection with any legal proceedings in relation to
this Facility Agreement.
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21. NOTICES
Notices between the parties hereunder may be delivered by facsimile or
in writing (except where otherwise required as per any of the Clauses of
this Facility Agreement) as follows:
if to the Borrower: KONINKLIJKE PAKHOED N.V.
P.O. Box 863
3000 AW Rotterdam (The Netherlands)
Attention: Treasury Department
Telephone: +31 10 400 26 09
Facsimile: + 31 10 414 79 56
if to the Bank: [*]
IN WITNESS WHEREOF the parties hereto have duly executed this Facility
Agreement in 2 originals on the day, month and year first above written, each
party declaring having received one original.
FOR AND ON BEHALF OF:
The Borrower, [*]
KONINKLIJKE PAKHOED N.V.,
By: /s/ N.J. Westdijk
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