ABD Agreement OTC-Derivatives - NAVTEQ BV and ABN AMRO Bank NV
[ABN-AMRO LOGO]
ABD AGREEMENT OTC-DERIVATIVES
UNDERSIGNED:
1. NAVTEQ B.V., established in Best, hereinafter to as 'the Borrower'.
2. ABN AMRO Bank N.V., having its registered office in Amsterdam, the
Netherlands, hereinafter referred to as 'ABN AMRO'
HAVE AGREED AS FOLLOWS:
ABN AMRO is prepared, until further notice, to enter into OTC-derivatives with
the Borrower (hereinafter also referred to as "the Client"). However, ABN AMRO
is not obliged to enter into such transactions with the Client ABN AMRO will
assess each transaction separately.
OTHER PROVISIONS
- The enclosed ABN AMRO General Provisions governing Derivatives Transactions
("ALGEMENE BEPALINGEN DERIVATENTRANSACTIES MEI 2001") will apply to all
derivatives transactions between the Client and ABN AMRO. By signing this
agreement, the Client declares that he has received a copy of said General
Provisions.
- In section 4.1 of the abovementioned ABN AMRO General Provisions governing
Derivatives Transactions for "The costs and expenses" can be read "Reasonable
out-of-pocket costs and expenses"
- In section 7.1 of the abovementioned ABN AMRO General Provisions governing
Derivatives Transactions "Unless publicly available" can be read in the
beginning.
- Sections 3.2, 8.2.c, 8.2.h, 8.2.n and 9.1.iv of the abovementioned ABN AMRO
General Provisions governing Derivatives Transactions are to be excluded.
- In section 8.2 b of the abovementioned ABN AMRO General Provisions governing
Derivatives Transactions a threshold of USD 5.000.000, -- is applicable.
- In section 8.2 g of the abovementioned ABN AMRO General Provisions governing
Derivatives Transactions the following is applicable: There is or will be a
change in control with respect to the activities or the business of NAVTEQ
B.V. if through the acquisition, directly or indirectly, by a third party,
of the beneficial ownership of equity securities having the power to elect a
majority of the board of directors of NAVTEQ B.V. or if such third party
otherwise acquires, directly or indirectly, the power to control the policy
making decisions of NAVTEQ B.V.. Such a change shall, in any event, be deemed
to have occurred if the direct or indirect interest of NAVTEQ Corporation in
NAVTEQ B.V. would fall below 50% of shareholder's equity. In addition is to
be read that a merger or demerger has to result, in the opinion of ABN AMRO,
in a materially financial weaker party. The amending of the articles of
association is only prohibited if it would materially impact NAVTEQ B.V.'s
ability to satisfy its obligations hereunder.
- In section 11 of the abovementioned ABN AMRO General Provisions governing
Derivatives Transactions has to be read "ABN AMRO will give notice to the
Client of amendments to these General Provisions. The Client will have 30
days to accept the amendments. Otherwise the present provisions remain in
place. Notice shall be sent to: Chief Financial Officer, 222 Merchandise
Mart, Suite 900, Chicago, IL 60654, with a copy to the General Counsel at the
same address."
- In addition to the abovementioned ABN AMRO General Provisions governing
Derivatives Transactions the following clauses are in place:
- NAVTEQ B.V., intents to use its excess cash to the extent available to pay
down the intercompany obligation on a monthly basis with a monthly average of
at least USD 3.000.000, [ILLEGIBLE] and NAVTEQ B.V. will keep the cross
currency swap (dated in July 2004) to actual USD-level of the intercompany
obligation. The monthly average will be calculated on a 6 months rolling
basis for the first time in January 2005.
- NAVTEQ B.V. will not enter into credit agreements with third parties without
the consent of ABN AMRO.
- Joint and several liability of NAVTEQ Corporation.
- ABN AMRO also encloses the brochure, "OTC-Derivatives Transactions with THE
Bank" ("OTC Derivatentransacties met DE Bank"). By signing this agreement,
the Client declares that he has received a copy of said brochure.
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[ABN-AMRO LOGO]
Signature:
Eindhoven, 27 July 2004 Best,_________________2004
ABN AMRO Bank N.V. NAVTEQ B.V.
Branch: Rogen 2-28
/s/ [ILLEGIBLE]
The undersigned, NAVTEQ Corporation, declares that he assumes joint and several
liability towards ABN AMRO for all sums that NAVTEQ B.V. is now or will at any
time hereafter become due to ABN AMRO under this arrangement.
NAVTEQ Corporation
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[ABN-AMRO LOGO]
The English translation is an unofficial translation and is provided to the
customer for convenience only.
The general provisions in the Dutch language shall be binding and prevail
in all respects.
ABN AMRO GENERAL PROVISIONS GOVERNING DERIVATIVES TRANSACTIONS.
1. SCOPE
These General Provisions shall apply to every OTC transaction between the Client
and ABN AMRO involving an interest rate swap, basis swap, spot currency
transaction, forward currency transaction, interest rate option, interest rate
cap, interest rate floor, forward rate agreement, interest rate collar,
swaption, currency swap, currency option, currency cylinder and similar
transactions. The General Provisions shall also apply to options relating to the
above transactions, combinations of the transactions referred to and other
transactions declared to be subject to these General Provisions.
2. JOINT AND SEVERAL LIABILITY/SET-OFF
2.1. If the Client consists of several legal entities or private
individuals, each of them shall be jointly and severally liable to ABN
AMRO for all present or future indebtedness of any or all of them to
ABN AMRO on account of the transactions or on any other account
whatsoever.
2.2. If the Client consists of several legal entities or private
individuals, ABN AMRO shall have the right to set off its indebtedness
to any or all of them against all indebtedness of any or all of them
to ABN AMRO on account of the transactions or on any other account
whatsoever, regardless of the currency in which the indebtedness is
denominated. Receivables denominated in foreign currency shall be set
off at the exchange rate on the day this set-off takes place.
3. SECURITY/NEGATIVE PLEDGE
3.1. ABN AMRO may require the Client to transfer a credit balance
(designated as margin) into a separate margin account to be held with
ABN AMRO as security for the performance of the Client's obligations,
which credit balance shall be pledged to ABN AMRO. ABN AMRO shall be
authorised to adjust the level of the margin in order to reflect
changes in circumstances.
3.2. As long as the Client owes ABN AMRO any sum on any account whatsoever,
or may become indebted to ABN AMRO in any way as a result of present
or future obligations, the Client shall not transfer all or any of its
assets, except in the normal course of its business, or encumber all
or any of its assets in favour of a third party without the prior
consent of ABN AMRO. Nor shall the Client enter into any obligation to
third parties to transfer or encumber its assets as above.
4. COSTS AND EXPENSES/TAXES
4.1. The costs and expenses incurred in connection with the execution of
the transactions, as well as the costs and expenses incurred by ABN
AMRO in connection with any failure on the part of the Client to
perform any obligation, including the costs of proceedings, debt
collection, legal assistance and experts, regardless of what party
they are incurred against, shall be borne by the Client and shall be
paid by the Client on ABN AMRO's first demand.
4.2. All taxes relating to payments in connection with the transactions
shall be borne by the Client and shall be paid by the Client on ABN
AMRO's first demand, except taxes on profit ABN AMRO is now or may at
any time hereafter become liable to pay. The above shall not apply to
the extent that ABN AMRO can set these sums off against corporation
tax, deduct them in calculating taxable profit, make use of a deferred
tax asset on its balance sheet for the sums, of enforce a right to
reimbursement.
5. PAYMENTS, DUE DATES
5.1. The Client shall make all payments at no cost to ABN AMRO.
5.2. Payments shall be made into or out of an account held by the Client
with ABN AMRO in the currency of the transaction. ABN AMRO is hereby
authorised to debit that account of the Client on the due date. The
Client shall ensure that the balance on that account is such that the
amount debited does not exceed the amount available for use.
5.3. Where the due date for any payment is, in the opinion of ABN AMRO, not
a business day for the relevant currency, payment shall be made on the
next business day. If the next business day is in a different calendar
month, payment shall be made on the last business day before the due
date.
5.4. If ABN AMRO has not received any sum due to it on the due date, the
Client shall be liable to pay daily default interest on that sum from
the due date, without prejudice to ABN AMRO's other rights.
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5.5. Payments shall be applied as follows: costs and expenses incurred,
compensation for losses sustained and lost profit, default interest,
interest, payments due in relation to the transactions and
compensation in the event of dissolution.
5.6. Unless agreed otherwise in respect of a specific transaction, the
actual/actual method shall be used in calculating interest.
Actual/actual means the actual number of days in the period to which
the calculation relates, divided by the actual number of days in the
year.
6. DEFAULT INTEREST
6.1. For Euros, ABN AMRO shall apply a default interest rate of 2.5% above
the Euro Overnight Index Average rate on an annual basis, to be
determined by ABN AMRO daily at 19.00 hours (Dutch time).
6.2. For other currencies, ABN AMRO shall apply a default interest rate of
2.5% above the tom-next (tomorrow next day) offered rate determined by
ABN AMRO for the relevant currency, to be determined daily at 11.00
hours (Dutch time), plus the debit interest and costs charged to ABN
AMRO.
7. ANNUAL REPORT, INFORMATION
7.1. The Client shall send ABN AMRO a copy of its annual accounts for the
past financial year as soon as they are ready and in any event no
later than six months after the end of that financial year.
7.2. The Client shall provide ABN AMRO, on first demand and also of its own
initiative, with all information on its financial position and
developments in its business which may materially affect its financial
position.
8. EVENTS OF DEFAULT
8.1. If the Client or one of the Client's partners institutes, or has
instituted against it, a proceeding seeking a judgment of insolvency
or bankruptcy, is declared bankrupt, proposes an amicable settlement
or composition with creditors, becomes insolvent and makes a general
assignment with or for the benefit of creditors (BOEDELAFSTAND), or
requests a debt restructuring arrangement (SCHULDSANERINGSREGELING),
all outstanding transactions will be automatically cancelled, without
prior notice being required, and all the Client's debts on account of
the transactions, whether or not due or conditional, shall become due
and payable forthwith and in full prematurely, without any demand or
default notice being required. The Client shall notify ABN AMRO
forthwith of the occurrence or expected occurrence of any events
mentioned above.
8.2. ABN AMRO may terminate early one or more outstanding transactions
forthwith and in full and may demand early payment, forthwith and in
full of any sum due from the Client under any such transactions,
whether or not due or conditional, without any demand or default
notice being required:
a. if the Client fails to comply with or fulfil, at the time and in
the manner required, any payment obligation arising under a
transaction with ABN AMRO.
b. if the Client fails to comply with or fulfil, at the time and in
the manner required, any obligation under any guarantee towards
third parties or any loan or financing arrangement with ABN AMRO
or a third party;
c. if the Client decides to cease its profession or business, to
discontinue, sell, let or dispose of the whole or part of the
Client's business or practice, or the Client is suspended,
removed or dismissed from the relevant profession, office or
function; if a licence, permit or registration required in order
to carry on in the Client's profession or business expires or is
refused or withdrawn; if in the opinion of ABN AMRO there is a
material change in the nature of the Client's profession or
business; if the client decides to move the relevant profession
or business to another country; if the Client acts in breach of
any statutory provisions relating to the profession or business;
if the Client ceases to pursue the present corporate objects set
out in the articles of association or loses its status as legal
entity;
d. if the partnership agreement (MAATSCHAPS- OF
VENNOOTSCHAPSCONTRACT) is terminated, or if one or more partners
join or leave the partnership, or if there is a dissolution or
winding-up (LIQUIDATE) or a decision or an obvious intention to
dissolve or wind up;
e. if the Client dies, is placed under curatorship or otherwise
loses legal capacity; if the Client takes up residence abroad, or
changes the terms of his marriage settlement; if any matrimonial
regime of property governing the Client is dissolved; if the
Client's assets are wholly or partly placed under administration
(BEWIND);
f. if all or, in the opinion of ABN AMRO, substantially all the
Client's assets are taken in execution or attached or an
attachment is not discharged or lifted within 30 days thereafter,
or if all or, in the opinion of ABN AMRO, substantially all of
the Client's property is disposed of, encumbered, expropriated,
confiscated, lost or damaged;
g. if the Client's legal structure is changed, the Client merges or
associates with one or more third parties, effects a demerger or
if, in the opinion of ABN AMRO, a significant change (whether or
not as a consequence of the transfer of shares) has taken place
in the control of the Client's
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business or practice or if such a change occurs in the
participating interest - whether direct or indirect - in the
Client's capital or if the Client's articles of association or
rules or regulations are, in the opinion of ABN AMRO,
significantly amended;
h. if the Client, without ABN AMRO's prior written consent, releases
its shareholders from liability to further calls on partly
paid-up shares, if the Client purchases its own shares, redeems
its shares or makes a distribution from its reserves, or decides
or obviously intends to do so;
i. if the Client revokes the authorization of ABN AMRO to debit the
Client's account as at the due dates;
j. if all or any of the goods, properties and other assets
(GOEDEREN) provided to ABN AMRO as security for the Client's
obligations are lost, destroyed, damaged, altered or decay for
any reason whatsoever;
k. in the case of a mortgage on any registered property; if the
whole or any part of the mortgaged property is attached,
expropriated, declared unfit for occupation, listed as a national
monument, redivided (OPHEMING IN [ILLEGIBLE]), demolished,
lost or damaged, if a leasehold (ERFPACHTSRECHT), a building
right (OPSTALRECHT) or a right to use an apartment (GETRU??SRECHT
VAN HER APPARTEMENT) completely or partially lapses, terminates
or expires, if the conditions governing a leasehold or a building
right are altered; the sub-division (SPLITSING) of the mortgaged
property is terminated or the relevant deed or regulations are
amended, if the leaseholder or the holder of a building right
fails to perform or acts in breach of any obligations under the
conditions governing the leasehold or building right, if the
owner or occupier of an apartment fails to perform or acts in
breach of any statutory provisions applying to the right to use
the apartment or any provision contained in the sub-division deed
or regulations;
l. in the case of a mortgage on a ship; if the whole or any part of
a mortgaged ship is attached, is classified in a lower category,
loses or changes its national registration, is requisitioned, is
the subject matter of abandonment, is missing, laid up, broken
up, wrecked or damaged;
m. if any circumstances mentioned in this article occur in respect
of a surety, a guarantor; jointly and severally liable debtor or
any third party who has provided ABN AMRO with security, or if
such a party fails to perform any obligation in respect of the
security provided;
n. if any circumstances mentioned in this article occur in respect
of a business or company which is included in the Client's
consolidated balance sheet or has control of the Client, or if
such a business or company defaults in the performance of any
obligation towards ABN AMRO in connection with facilities granted
by ABN AMRO;
o. if the Client has given ABN AMRO incorrect information or has
withheld information from ABN AMRO which is of significance in
connection with the conclusion of derivative transactions.
The Client shall notify ABN AMRO forthwith of the occurrence or
expected occurrence of any events mentioned above.
9. COMPENSATION
9.1. Where payment is demanded, ABN AMRO shall determine the amount
immediately payable in euros, owed as compensation for losses
sustained and lost profit. This compensation shall consist of the sum
of:
(i) unpaid sums due from the Client in connection with the transactions,
(ii) the value of the transactions, calculated on the basis of the
replacement cost of the transactions,
(iii) funding costs incurred by ABN AMRO, the costs of breaking off or
replacing the derivatives transactions related to those transactions,
calculated on the basis of the valuation of the transactions at
market value,
(iv) other loss or lost profit suffered by ABN AMRO arising out of the
transactions;
regardless of the currency in which the receivables are denominated.
To the extent that the demand for payment is also the advantage of ABN
AMRO, ABN AMRO shall take this into account in determining the
compensation due.
The compensation does not include costs of proceedings, debt
collection, legal assistance and experts.
9.2. ABN AMRO shall send a breakdown of the compensation to the Client
forthwith. Default interest shall be charged and be due on the
compensation from the day of the demand until the day of payment in
full.
10. CIRCUMSTANCES DISRUPTING THE MARKET
If in the opinion of ABN AMRO there are circumstances disrupting the market, ABN
AMRO shall be entitled to take suitable measures, including terminating a
transaction prematurely. Circumstances disrupting the market shall include at
least the following:
- the suspension or limitation of trade in the commodity and/or underlying
value to which the transaction relates;
- the suspension or limitation of payment transactions in a transaction
currency;
- the discontinuation, amendment or correction of a price source, reference
rate, index or other source referred to in a transaction;
- changes in the law or measures taken by authorities which are relevant to
the transactions.
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11. AMENDMENTS
ABN AMRO shall announce any amendments to these General Provisions in at least
three national daily newspapers. Such amendments shall be binding on ABN AMRO
and the Client with effect from the thirtieth day after this publication. The
General Provisions as amended shall be available from ABN AMRO or shall be sent
to the Client on first demand.
12. APPLICABLE LAW AND JURISDICTION
Dutch law shall apply to the transactions. Disputes between the Client and the
Bank shall be submitted to the competent Dutch court. If the Bank initiates
proceedings, it shall be authorised to submit the case to the foreign court that
is competent in respect of the Client.
13. GENERAL CONDITIONS
All relations between the Client and ABN AMRO shall be governed by the General
Conditions (ALGEMENE VOORWAARDEN) of ABN AMRO. A copy of the said General
Conditions can be obtained from any ABN AMRO branch in the Netherlands.
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