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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 a
Facility in the amount of f. 100,000,000.00 (in words:
one hundred million guilders);
- 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. 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
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comparable maturities.
e. 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.
f. End Date: 15 July 1999.
g. 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. Taking into account the provisions of Art. 2.2, the Borrower can avail
itself of the Facility by borrowing Advances - from the Start Date till
the End Date, without prejudice to the provisions of Article 12.
2. The Borrower is authorized at all times 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. However, the Borrower is obligated to reduce the
Facility in its entirety or in proportion to the facilities made
available by other financial institutions in the total amount of f.
300,000,000.00 (in words: three hundred million guilders) from the
proceeds of issuance of new stock and/or from the proceeds of the sale
of Furness.
ARTICLE 3 USE
1. The Borrower is authorized to borrow Advances under the Facility, with
the understanding that the total amount of outstanding Advances 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 Rabobank Nederland by telephone or telefax of
its intention to borrow Advances, 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
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borrowing as regards borrowing in Eurocurrency, indicating the amount,
the desired maturity, and the desired Eurocurrency. Rabobank Nederland
will send a written confirmation to the Borrower as to the negotiations
with respect to Advances, including the principal, the maturity, and
the interest as established by Rabobank Nederland.
3. If, on the desired day of borrowing of Advances in Eurocurrency,
Rabobank Nederland ascertains that, due to circumstances on the
interbank money market(s), the Eurocurrency desired by the Borrower is
not available, Rabobank Nederland's obligation to provide the
Eurocurrency for the respective borrowing of Advances is at an end. The
Borrower is then entitled to borrow Advances in another Eurocurrency,
taking into account the provisions of Paragraph 3.1.
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
Rabobank Nederland, for the first time on 30 June 1996. 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
1. a. The interest on Advances in guilders shall be equal to the
AIBOR rate, which interest is increased by a surcharge
of [*].
b. The interest on Advances in Eurocurrency shall be equal to the
LIBOR rate, which interest is increased by a surcharge of [*].
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 [*].
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).
ARTICLE 6 DISBURSEMENT
Disbursement of Advances shall occur by crediting a bank account to be specified
by the Borrower, using as the value date the date of
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arrival of the Advances. This crediting forms the evidence of indebtedness.
ARTICLE 7 REPAYMENT/REDEMPTION
1. The amount which the Borrower owes in principal, interest and expenses
to Rabobank Nederland by virtue of the Advances extended must be paid
(back) on the due date in a bank account to be specified by Rabobank
Nederland.
2. Advances which are borrowed should be repaid in the same currency as
that in which they were borrowed.
3. The Advances borrowed under the Facility must be repaid no later than
the End Date.
ARTICLE 8 ACCELERATED REDEMPTION
Total or partial accelerated redemption of Advances is only permitted if this is
done from the proceeds of issuance of new stock and/or from the proceeds from
the sale of Furness, and under compensation of Rabobank Nederland.
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, Rabobank Nederland 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 which are issued after the date of notification on the
first demand of Rabobank Nederland.
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 Rabobank Nederland 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 under the Facility can be immediately
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demanded at all times, without prior notice or dunning, in the following cases:
a. if the Borrower fails to fulfill any obligation to Rabobank Nederland
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 Rabobank Nederland 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
Rabobank Nederland 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 Rabobank Nederland 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.
ARTICLE 13 FINANCIAL INFORMATION
The Borrower is obligated to send Rabobank Nederland 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 Rabobank Nederland
by virtue of the Facility to Rabobank Nederland without deduction
and/or settlement, at the offices of Rabobank Nederland or at such
place as is indicated by Rabobank Nederland.
2. All Dutch taxes which might be levied in future in the form of an
independent profit tax on the interest, not counting as
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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
Rabobank Nederland shall qualify as full proof, unless the Borrower furnishes
counter-evidence.
ARTICLE 16 SECURITY
1. The Borrower promises to Rabobank Nederland 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,
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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 Rabobank
Nederland on which approval Rabobank Nederland 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
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 Rabobank Nederland 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.
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Thus signed in duplicate at the respective locations on 4 June 1996
I. (*)
II. KONINKLIJKE PAKHOED N.V.