1
(9)(1)
STANDBY ROLLOVER
AGREEMENT
BETWEEN
KONINKLIJKE PAKHOED N.V.
AND
[*]
Article Page
- ------- ----
1. Definitions 2
2. Conditions for Acceptance 4
3. Acceptance 4
4. Special Market Circumstances 4
5. Interest and Reimbursements/Repayment of Advance 5
6. Maturity and Reduction of Facility 6
7. Conversion 6
8. Balance Sheet Ratios/Negative Statement 7
9. Payments 8
10. Increased Expenses 9
11. Expenses 9
12. Accounting for Payments 10
13. Transfer 10
14. Exercising of Rights 10
15. Annual Accounting 10
16. Proof of Claim 10
17. Accelerated Demand 11
18. Notices 12
19. Differences 12
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STANDBY ROLL-OVER AGREEMENT
The undersigned:
1. The limited company KONINKLIJKE PAKHOED N.V., established in Rotterdam,
hereafter known as: "Borrower",
and
2. the limited company [*],
maintaining an office in Rotterdam (Coolsingel 119), hereafter known
as: "Bank";
HAVING TAKEN INTO CONSIDERATION:
- - that the Bank and Borrower on 12 June 1985 entered into a standby
roll-over agreement up to a maximum amount of NLG 150,000,000.00 (one
hundred fifty million guilders), which agreement was last modified
during the agreement dated 3 September 1990, this (modified) agreement
hereafter being known as: "1985 Agreement";
- - that the Bank by letter dated 21 September 1995 has offered Borrower in
replacement of the 1985 Agreement, which hereby expires, a standby
facility up to a maximum amount of NLG 100,000,000.00 (one hundred
million guilders) with conversion options, and Borrower has accepted
this offer;
- - that the parties now wish to set forth the conditions of the aforesaid
facility;
STIPULATE AS FOLLOWS:
Article 1
DEFINITIONS
In this agreement, the terms mentioned hereafter shall have the meanings given
below.
AIBOR: (Amsterdam Interbank Offered Rate) the interest
percentage on an annual basis for one, three, six and
twelve-month interbank money deposits, which are
published daily by De Nederlandsche Bank N.V. at
approximately 12:00 A.M. (Dutch time). The rates are
an average of the prices (so-called selling prices)
at which a number of leading banks (established in
the Netherlands) are willing to provide each other
deposits at the time of measurement (around 12:00
o'clock) for the respective period of time;
Basis Guilder Amount: with respect to an Advance issued in a currency of
choice, the amount in guilders which was used in
calculating the countervalue upon acceptance of that
Advance;
Start Date: the date of signing of this agreement;
Facility: a standby credit facility on roll-over basis up to a
maximum amount of NLG 100,000,000.00 (one hundred
million guilders), which facility the Bank has made
available to Borrower under the terms and
stipulations of this agreement;
Currencies of Choice: the foreign currency (or currencies) which are freely
convertible into guilders and which according to the
Bank are current in the interbank Eurodeposit market,
in which Borrower may accept Advances in accordance
with the stipulations of this agreement;
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Loan Amount: the sum of the Advances which Borrower has accepted
at any time in guilders or in one or more Currencies
of Choice under the Facility, with the understanding
that the Basis Guilder Amount applies to the latter;
LIBOR: the interest percentage on an annual basis at which,
according to the Bank deposits in the respective
Currency of Choice, comparable to the respective
Advance as regards amount and maturity, are offered
by banks to leading banks in the London interbank
money market at 11:00 P.M. (London time), two Work
Days prior to the start of the respective Advance;
Countervalue: the amount in the respective Currency of Choice,
converted from guilders, at the average rate of said
Currency of Choice with respect to the guilder as
officially quoted on the Amsterdam Exchange, or for a
Currency of Choice which is not officially quoted,
the market rate applicable to the Bank for purchase
of said Currency of Choice with guilders, three Work
Days prior to the start of the respective Advance;
Advance: a monetary sum of NLG 5,000,000.00 (five million
guilders) or a multiple thereof, or the Countervalue
thereof in a Currency of Choice, rounded off to units
of one million, which the Bank loans to the Borrower
for one, three, six or twelve months, as the Borrower
chooses, under the Facility. An Advance with a
different maturity can only be accepted with express
consent of the Bank. This consent is dependent on the
circumstances in the interbank money market of the
respective currency (Currency of Choice). The Bank's
decision in this is binding on Borrower;
Work Day: a day on which the banks in the Netherlands and, if a
Currency of Choice is involved, [those] in the United
Kingdom and in the country of the respective Currency
of Choice, are open to the public.
Article 2
CONDITIONS FOR ACCEPTANCE
Borrower can, with the advent of the Start Date, observing the conditions of
this agreement, request the Bank to make available one or more Advances under
the Facility on a Work Day, provided the following conditions are fulfilled:
(i) none of the events or circumstances provided in Article 17 arises;
(ii) the Bank from the Borrower its latest articles of association.
Article 3
ACCEPTANCE
a. If Borrower wishes to accept an Advance in guilders, it shall notify
the Bank thereof by telephone or telefax no later than 11:00 A.M. on
the day of acceptance of the particular Advance, during which Borrower
shall indicate the date of acceptance, the amount, and the maturity of
the Advance.
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b. Borrower can request the Bank to make available one or more Advances in
a Currency of Choice under the Facility, observing a deadline of three
Work Days. The request shall contain the date of acceptance, the
amount, the maturity and the Currency of Choice of the desired Advance.
c. If Borrower has notified the Bank by telephone, the Bank has the right
to demand a written confirmation from Borrower before making available
an Advance.
d. The Bank shall provide each advance loaned to an account or accounts at
the Bank opened in the name of Borrower.
e. In the choice of the Advances, Borrower shall pay attention to the
reduction of the Facility, the corresponding repayments per Article 6,
and the conversions per Article 7.
f. The Advances accepted under the 1985 Agreement on the date of signing
of this agreement, up to a total amount of NLG 40,000,000.00 (forty
million guilders), are considered as being assumed under the Facility,
with the understanding that the interest rate prevailing for those
Advances (i.e., as determined under the 1985 Agreement) remain in force
until the end of the particular maturity of the Advances.
Article 4
SPECIAL MARKET CIRCUMSTANCES
a. If the Bank prior to acceptance of an Advance in guilders ascertains
that, by reason of circumstances which affect the interbank money
market of Amsterdam, the interest on an Advance to be accepted cannot
be reasonably determined on the basis of AIBOR, the Bank shall
immediately inform Borrower of this.
b. Parties shall then take counsel as to a substitute interest for the
requested Advance. If this consultation has not led to agreement by
11:00 A.M. on the first day of the Advance, the Bank will then
determine the substitute interest for the Advance. Borrower will not
then be obligated to accept the Advance, provided it notifies Bank of
such without delay, but no later than 12:00 o'clock of the same day.
c. The substitute interest shall be based on the expenses of the Bank,
plus the margin mentioned in Article 5.a.1. If Borrower cannot agree to
the substitute interest, the obligation of the Bank to provide the
Advance requested by Borrower is suspended until the Bank informs
Borrower that it can reasonably establish the interest on the basis of
AIBOR.
d. In the situation mentioned in the paragraphs preceding this article,
the Bank makes no reservation with respect to the possibility of making
guilders available.
e. The Bank shall keep Borrower apprised of the developments of AIBOR and
immediately inform Borrower whenever the interest as provided in
Article 5.a.1 can be reasonably established on this basis.
f. If the Bank prior to acceptance of a Currency of Choice ascertains
that, by reason of circumstances which affect the interbank money
market of London, the interest on an Advance to be accepted cannot be
reasonably determined on the basis of LIBOR, the Bank shall immediately
inform Borrower of this.
g. Parties shall then take counsel as to a substitute basis on which the
Bank shall make available the requested Advance to Borrower. If this
consultation has not led to agreement by 11:00 o'clock one day before
the start of the Advance, the Bank shall determine the substitute basis
and Borrower shall have the right to refrain from accepting the Advance
and to request the Bank to provide the Advance in guilders. In the
latter case, the Bank shall provide the Advance to Borrower in
guilders, without prejudice to the provisions in Paragraphs a through e
of this Article 4.
h. The Bank shall from time to time keep Borrower apprised of the
developments on the London interbank money market with respect to the
particular Currency of Choice and immediately notify it whenever the
interest can be reasonably established on the basis of LIBOR.
Article 5
INTEREST AND REIMBURSEMENTS/REPAYMENT OF ADVANCE
a. Borrower promises:
(i) to pay the Bank for each Advance accepted under the Facility
an interest on an annual basis that is equal to AIBOR (in the
case of guilders) or LIBOR (in the case of a Currency of
Choice), in both cases plus a margin of [*]; from 1 December
1997 this margin shall be [*];
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(ii) to pay the Bank, for the daily amount not accepted under the
Facility, from the Start Date, a readiness commission of [*]
on an annual basis, which commission Borrower shall satisfy on
the last day of each prior calendar quarter, for the first
time on 31 December 1995. From 1 December 1997, the readiness
commission shall be [*] on an annual basis.
b. The computation of the interest and the commission shall be done on the
basis of the actual number of days and a year of 360 days, unless an
Advance is provided in Belgian Francs or British Pounds, in which case
a year of 365 days is used.
The determination of interest by the Bank shall be binding on Borrower,
unless error is proven. The Bank shall confirm the established interest
in writing to Borrower. The interest for each Advance is due at the
same time as the repayment of that Advance. In the case of an Advance
of longer than six months, the interest shall be computed after every
six months and be paid by Borrower.
c. Each Advance shall be repaid at the end of the maturity thereof. The
repayments are made in guilders or, insofar as concerns an Advance in a
Currency of Choice, in that Currency of Choice. But if, through
monetary circumstances which lie entirely outside the influence of
Borrower, Borrower cannot obtain the Currency of Choice in order to pay
back the Advance at the end of its maturity, Borrower shall immediately
inform the Bank of such. The parties shall then enter into consultation
to attempt to implement the repayment in different fashion. If parties
within five Work Days from the aforesaid communication of Borrower have
not reached an agreement as to the repayment, Borrower shall repay the
Advance in guilders on the following Work Day. The expenses and
currency loss which ensue to the Bank from invoking this clause shall
be charged to Borrower and shall be paid by Borrower at first demand of
the Bank.
d. Repayment of an accepted Advance before the end of its maturity is not
permitted.
Article 6
MATURITY AND REDUCTION OF FACILITY
a. The amount of the Facility shall be reduced on two deadlines, of NLG
50,000,000.00 (fifty million guilders) each, the first on 1 December
2002 and the last on 1 December 2004. On 1 December 2004, the Facility
will thus be terminated; Borrower shall then redeem the full amount
outstanding under the Facility on that date.
b. Borrower is permitted at all times to reduce the Facility at an
accelerated rate with an amount of NLG 5,000,000.00 (five million
guilders) or a multiple thereof, provided no (further) use is made of
the desired accelerated reduction on the date thereof. Borrower shall
inform the Bank in writing of its intention to make a reduction, at
least ten days before an accelerated reduction. This communication is
irrevocable.
Article 7
CONVERSION
a. During the term of the Facility, but no later than 1 December 2001,
Borrower is entitled to request the Bank, observing a deadline of at
least ten Work Days, to entirely or partially convert the Facility into
one or more monetary loans in guilders for the remaining term of the
Facility at a fixed rate of interest ("Fixed Loan(s)"). If an Advance
is running, the conversion thereof may only occur on the day following
the last day of maturity of that Advance.
b. The request mentioned under Item a is made in writing to the Bank,
containing the desired date of conversion, the amount to be converted,
being at least NLG 10,000,000.00 (ten million guilders) or a multiple
thereof, and the desired interest period, as well the declaration by
Borrower that the conditions for acceptance as mentioned in Article 2
continue to be fulfilled. If these conditions are met, the Bank shall
then satisfy the request of Borrower.
c. The interest on the Fixed Loan shall be determined for an interest
period of one year or a multiple thereof, chosen by Borrower, up to the
maximum of the remaining maturity of the Facility.
The Bank shall determine the interest one to five Work Days prior to
the date of conversion, or the first day of a new interest period, at
the cost price to the Bank, plus a margin to be agreed upon between
Bank and Borrower at that moment.
The interest is then computed on the basis of a month of 30 days and a
year of 360 days and shall be payable at the end of six months. After
determination of the interest, the request mentioned under Item a is
irrevocable.
d. Borrower shall redeem the Fixed Loan(s) at semiannual terms or at
periods of time to be stipulated with the Bank, while the provisions of
Article 6.a shall apply accordingly.
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e. Borrower shall have the option of early repayment of 5% (five percent)
of the original principal of a Fixed Loan per year, this being done
with no special reimbursement, provided this repayment is reported to
the Bank by Borrower one month in advance, in writing (including
telefax), and the day of payment coincides with an interest due date.
f. Larger accelerated redemptions than those mentioned under Item c are
only permitted to Borrower, with the same notification and on the same
date as Item e, if Borrower pays the Bank a reimbursement at the same
time as the accelerated repayment and the interest. The reimbursement
is determined by the difference between:
(i) the sum of the contractual interest installments in cash,
remaining as of the date of early repayment, on the amount to
be repaid early;
and
(ii) the sum of interest paid in cash which the Bank will be able
to use for monetary loans comparable to the accelerated
repayment in amount and maturity as of the date of early
repayment ("Actual Interest"),
with a minimum of 1% (one percent) of the amount being repaid early.
The conversion into cash shall occur at the Actual Interest, if the
contractual interest is lower than the Actual Interest the
reimbursement shall be equal to 1% (one percent) of the amount being
repaid early, except in the event that the contractual interest is more
than 1% (one percent) lower than the Actual Interest, in which case no
reimbursement is owed.
g. The other conditions of this agreement shall be applied accordingly to
the Fixed Loan(s), when possible.
Article 8
BALANCE SHEET RATIOS, NEGATIVE STATEMENT
a. Borrower promises to ensure that, during the term of the Facility:
(i) 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 one to one (1:1);
(ii) on the consolidated balance sheet, a ratio between long
[term?] borrowed capital and shareholders' equity shall never
exceed two point five to one (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% (one hundred percent) 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% (fifty percent) 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.
b. 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.
c. Wherever this article speaks of real property, real rights are also
understood thereby.
d. 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 b and Item c above.
Article 9
PAYMENTS
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a. Borrower shall make payments of amounts which it shall owe by virtue of
this agreement without any deduction or compensation (including
deduction or reduction by virtue of any levy or taxation of any kind,
but not including assessments for the Bank which are designated by law
as Dutch tax withheld on the corporate assessment and levied on
Borrower) and without cost to the Bank on the dates of maturity,
insofar as concerns payment in guilders, at the Bank's office in
Rotterdam, Coolsingel 119, in legal tender of the Netherlands as of the
date of payment, unless the Bank has notified Borrower of a different
payment address in the Netherlands in good time.
b. Payments in a Currency of Choice shall also be made without any
deduction or compensation (including deduction or reduction by virtue
of any levy or taxation of any kind, but not including assessments for
the Bank which are designated by law as Dutch tax withheld on the
corporate assessment and levied on Borrower) and without cost to the
Bank to the account of the Bank at its correspondent in the country of
the respective Currency of Choice, to be indicated to Borrower in
advance.
c. If the date of maturity of any payment does not fall on a Work Day, the
next work day shall qualify as the date of maturity, unless the next
Work Day falls in the next calendar month, in which case the date of
maturity is the immediately preceding Work Day, recalculating the
interest amount in both cases.
Article 10
INCREASED EXPENSES
If, by virtue of statutory provisions or measures, or a change in the
enforcement or interpretation thereof, including provisions or measures of De
Nederlandsche Bank N.V. or of any authority of a country of the Currency of
Choice in which any Advance has been provided:
a. the Bank with respect to the Loan amount and/or the interest under this
agreement is subject to a tax assessment other than an assessment on
profit or a Dutch withholding of the corporate taxation;
b. the Bank is obligated to maintain reserves or deposits with respect to
Advances loaned or to be loaned under this agreement, and/or if a
change occurs in the obligation;
c. the Bank is subjected to any other obligation with respect to this
agreement;
and thereby the expenses associated with the Advances in a Currency of Choice
loaned or to be loaned by virtue of this agreement are increased for the Bank:
1. the Bank shall inform Borrower of this as soon as possible, and consult
with Borrower as to the extent to which the harmful consequences
thereof can be limited, and
2. Borrower shall pay the Bank, at its first request in this regard, as
much extra as is necessary to hold the Bank harmless from these extra
expenses, and
3. Borrower shall be entitled to make early repayment on the Loan Amount,
together with interests, and whatever other amount, wholly or
partially, is owed by Borrower in that Currency of Choice by reason of
this agreement, but in amounts of at least NLG 5,000,000.00 (five
million guilders) or the Countervalue thereof, provided it has given
written notice of its intention to the Bank within fourteen days of the
notification by the Bank per Item 1 above, without prejudice to
Borrower's obligation to compensate the Bank, at its request, for all
damages which the Bank shall suffer up to the end of the particular
Advance as a direct consequence of such an early repayment. Repayment
shall occur within fourteen days of Borrower's communication as
provided in this paragraph.
Article 11
EXPENSES
All expenses incurred by the Bank as a direct consequence of the fact that
Borrower does not fulfill any obligation which it has assumed by virtue of this
agreement, or does not do so in timely or proper manner, including all
reasonable expenses of lawyers and other outside experts, as well as processing
fees, assessed against whomever, but in direct connection with the rights of the
Bank against Borrower, shall be charged to Borrower and paid by Borrower at the
first demand of the Bank.
Article 12
ACCOUNTING FOR PAYMENTS
Whatever the Bank shall receive from Borrower by virtue of this agreement shall
be applied to diminish or to pay the debt of Borrower, first of all that
resulting from expenses incurred, then the readiness commission, then
reimbursements, then the interest, and lastly the principal.
Article 13
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TRANSFER
a. Borrower promises not to withhold its approval from the Bank, except
for reasonable grounds, if the Bank wishes to transfer the rights and
obligations from this agreement in whole or in part to third parties
and also promises to acknowledge this transfer in writing. Any expenses
arising from an assignment and transfer shall be charged to the Bank.
b. The Bank promises not to withhold its approval from the Borrower,
except for reasonable grounds, if the Borrower wishes to transfer the
rights and obligations from this agreement in whole or in part to third
parties within its group and also promises to acknowledge this transfer
in writing. Any expenses arising from an assignment and transfer shall
be charged to the Borrower.
Article 14
EXERCISING OF RIGHTS
The exercising by the Bank of the rights resulting to it from this agreement,
the times at which and the order in which these shall be exercised, shall be the
choice of the Bank, without the nonexercising of any right being susceptible of
interpretation that the Bank has relinquished that right.
Article 15
ANNUAL ACCOUNTS
Borrower shall hand over to the Bank each year, as soon as possible after they
are produced, but no later than six months after the end of the accounting year,
its consolidated annual accounts approved by an independent certified
accountant. Furthermore, Borrower shall provide to the Bank, at its first
demand, all other explanations which the Bank may reasonably request of
Borrower.
Article 16
PROOF OF CLAIM
The bookkeeping of the Bank shall furnish complete proof of the amount of and
reason for all amounts owed by Borrower to the Bank by virtue of this agreement,
although Borrower may furnish counter-evidence.
In event of a difference as to any balance which is due and payable by Borrower
according to the books of the Bank, Borrower shall not be entitled to refuse or
delay the payment of that balance in whole or in part.
Article 17
ACCELERATED DEMAND
a. The Loan Amount, together with interest and all other amounts owed by
Borrower by reason of this agreement, are immediately demandable in
their entirety, without any summons, serving of notice, or other
formality being required:
1. 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;
2. 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;
3. if Borrower ceases its operations or resolves on dissolution;
4. if Borrower transfers its operations to a new or different
company or otherwise alienates them;
5. 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.
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b. Borrower is obligated to inform the Bank immediately as to the
occurrence of one or more of the circumstances affecting Borrower as
mentioned above under Item a, Subitems 2, 3, 4 or 5.
The obligations of the Bank by virtue of this agreement shall end immediately
upon occurrence of one of the events mentioned above under Paragraph a.
If the Bank demands repayment, Borrower shall immediately owe the Bank a
reimbursement of 1-1/2% (one and a half percent) of the amount demanded by the
Bank, without prejudice to the Bank's right of complete reimbursement of damages
and expenses if these should amount to a higher sum.
Without prejudice to the provisions of the preceding paragraphs of this article,
Borrower in event of late payment of any amount owed by it by virtue of this
agreement is obligated to pay, on the amount paid late to the Bank during the
period from the due date until the date of payment, a reimbursement of 2-1/2%
(two and a half percent), annually, above a) the interbank selling price in
Amsterdam for call money, insofar as guilders are concerned, and b) the
"interbank overnight interest rate" in London for the respective Currency of
Choice, in both cases on each day of the tardy payment at 11:00 A.M. Amsterdam
or London time, respectively. As regards tardy payment of a redemption
installment, this reimbursement takes the place of the interest mentioned in
Articles 5 and 7 after the maturity date.
Article 18
NOTIFICATIONS
Notifications and communications with respect to this agreement can only be
given in writing or by telefax, unless otherwise specified in this agreement,
and at the addresses reported below:
For Borrower: Koninklijke Pakhoed N.V.
Dept. Treasury
P. O. Box 863
3000 AW Rotterdam
Telefax: (010) 4147956
For the Bank: [*]
Address changes are only valid after written communication has been given
thereof to the other party.
Article 19
DIFFERENCES
a. Differences with respect to this agreement shall be submitted to the
competent magistrates of Amsterdam, unless otherwise provided.
b. The General Conditions of the Bank shall apply to this agreement,
unless otherwise expressly stipulated in this agreement, as have been
filed by the Dutch Banking Association on 11 November 1987 with the
clerk of the District Courts of Amsterdam and Rotterdam, with the
understanding that the Bank promises not to invoke the Articles 18, 19,
20, 21 and 33 of the General Conditions.
c. Changes in this agreement, including the General Conditions mentioned
under Item b, are only valid if both parties have given their written
consent to them.
THUS DRAWN UP AND SIGNED IN DUPLICATE
at Rotterdam, on 30 November 1995
Koninklijke Pakhoed N.V. [*]