Exhibit 5
CREDIT AGREEMENT
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BETWEEN THE UNDERSIGNED:
NATEXIS BANQUES POPULAIRES, corporation with capital of 768,921,808 euros, with
registered office in PARIS (7th), 00 xxx Xxxxx-Xxxxxxxxx, recorded with the
Register of Commerce and Companies of PARIS under No. B 542 044 524,
Represented by Xx. Xxxx XXXXXXXXX
and Xx. Xxxxxxxxxx XXXXX
undersigned.
(hereinafter "the Bank")
PARTY OF THE FIRST PART
The Company NATUREX, a corporation with capital of 3,246,777 euros, recorded
with the Register of Commerce and Companies of AVIGNON under No. B 384 093 563
with registered office in AVIGNON (84140), ZAC Pole Technologique AGROPARC
MONTFAVET,
Represented by Xx. Xxxxxxx XXXXXXX, Assistant General Director, undersigned,
whose powers of attorney were proven to the Bank.
(hereinafter "Borrower")
PARTY OF THE SECOND PART
IT HAS BEEN DECIDED AND AGREED AS FOLLOWS:
ARTICLE 1 - OPENING OF CREDIT:
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The Bank, at the request of Borrower, accepts to make available to it under the
conditions below, a line of credit (hereinafter "the Credit") in a maximum
amount of five hundred thousand EUROS (500,000 EUR).
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ARTICLE 2 - TERM OF THE CREDIT:
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The Credit is granted for a term of five years, i.e. until December 31, 2009.
ARTICLE 3 - UTILIZATION OF THE FUNDS:
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Borrower declares that the funds to originate from this Credit will be used to
finance the consolidation of its needs for working capital.
The Bank will not be obligated to supervise the use thereof.
ARTICLE 4 - MODALITIES FOR THE UTILIZATION OF THE CREDIT:
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The Credit may be used by drawdown in EUR, within the limit of its available
amount.
Each drawdown must be the object of a notice sent by fax (confirmed by letter)
at the latest at 10 AM - Paris time - two (2) business days before the desired
payment date.
This notice must specify:
- the scheduled date of the drawdown,
- the desired duration of the drawdown (1, 3 or 6 months),
- the amount of the drawdown.
It is specified herein that the expression "business day" means any full day in
which the interbank market operates or in which the credit establishments and
banks are open in PARIS.
Each drawdown must be in the minimum amount of 100,000 EUR, and beyond by
multiples of 100,000 EUR, with a duration of 1, 3 or 6 months.
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The first and the last day of any drawdown must correspond to a business day.
No drawdown may have a maturity date after the last maturity date of the Credit.
A special account will be opened on the books of the Bank, an account different
from the checking account of borrower, in order to record the drawdowns on the
Credit.
The drawdowns will be reimbursed on their respective due date.
ARTICLE 5 - CONDITIONS PRECEDENT FOR EACH DRAWDOWN:
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Borrower may not request a drawdown in any of the following cases:
- occurrence of any event liable to cause the forced prepayment of the Credit;
- occurrence of any event that would make Borrower unable to face its
commitments hereunder.
- if any of Borrower's declarations herein prove to be inexact.
ARTICLE 6 - REIMBURSEMENT - AMOUNT AVAILABLE:
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The due date of the credit is established on December 31, 2009 when all
drawdowns on the Credit must be fully reimbursed.
The amount of the Credit will be reduced by 5 annual, equal and consecutive
tranches of 100,000 euro each, the first reduction date being scheduled for
December 31, 2005.
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ARTICLE 7 - COMMITMENT COMMISSION:
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During the entire term of this agreement and as of its signing date, the Bank
will receive for the entire amount available of the Credit a commitment of
commission of 0.30% per annum. This commission will be withheld quarterly in
advance, as of the signing date of the agreement.
ARTICLE 8 - INTEREST:
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The drawdowns made by Borrower to use this Credit opening will produce interest
at EURIBOR as defined below, for the duration of the interest period chosen (1,
3 or 6 months), plus 0.80% per annum.
EURIBOR means the average rate rounded down to three decimals, established under
the aegis of the Bank Federation of the European Union, at which interbank
deposits in Euros, with a term of one (1) month for interest periods of one (1)
month, with a term of three (3) months for interest periods of three (3) months,
and with a term of six (6) months for interest periods of six (6) months, are
offered between first signature banks within the Euro Zone, as published on page
248 of the TELERATE DOW XXXXX, or in any other page replacing it, two business
days before the beginning of the interest period considered at eleven AM (11 AM)
Brussels time.
Interest will be paid on maturity the last day of the drawdown. It will be
calculated by considering the exact number of days out of a year of three
hundred sixty (360) days.
ARTICLE 9 - TOTAL EFFECTIVE RATE:
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The parties expressly acknowledge that because of the possibility offered to
Borrower to choose the term of the Interest periods, on the signing date hereof,
it is not possible to determine precisely the total effective rate applicable to
the Credit.
However, it is specified that supposing that the Credit is drawn in full and for
its entire term at a rate indexed on EURIBOR three months, based on EURIBOR
three months of 12/13/2004 valid on 12/15/2004, i.e. 2.174% per annum, the rate
of the period would be 0.851833%, the term being equal to three months; the
annual Total Effective Rate, base 365/365, would therefore be 3.40733%.
ARTICLE 10 - MALFUNCTION OF THE MARKET - UNAVAILABILITY OF THE EURO
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If, due to a malfunction of the interbank market, before the availability or
renewal of a drawdown, the Bank is not able to determine an interest rate or to
obtain deposits in Euro on said market for the term of the drawdown, it would
immediately notify Borrower.
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The parties would then negotiate in order to reach an agreement on the manner of
overcoming the difficulty faced. This negotiation will end at the latest the
30th day following the date in question.
No drawdown may be made during the negotiation period, or afterwards if the
negotiation fails. In this case, Borrower would indemnify, based on backup
documents, the Bank for any expense or loss suffered or incurred by it because
of this. The ongoing drawdowns will have to be reimbursed on their final due
date.
ARTICLE 11 - MISCELLANEOUS PROVISIONS
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I - Every drawdown renewal will be considered a new drawdown and the
declarations made by Borrower hereunder will be repeated with every new drawdown
or renewal.
II - If the regulations applicable to the Bank are changed with a direct or
indirect unfavorable impact on the net compensation of the Bank, it will
immediately notify Borrower. The Bank and Borrower then will start negotiations
in order to reach an agreement on the manner in which they can face this new
situation, within thirty days after the notice sent by the Bank.
Notwithstanding any provision to the contrary in the agreement, no new
availability of funds will be offered by the Bank during the term of this
negotiation or afterwards if an agreement is not reached.
In the latter case, Borrower will reimburse the ongoing drawdowns and will pay
at the same time, based on backup documents, the amount necessary to fully
compensate the net reduction suffered by the Bank for the increase of its costs
and/or the reduction of its compensation.
III - Any payment in favor of the Bank must be made net of all taxes, dues or
fees of any type.
If a legal or regulatory provision forces Borrower to deduct from the amounts
owed to the Bank taxes, dues or fees of any type, Borrower would increase the
amounts owed to the Bank so that the latter may receive in full and on the
correct date the amount it would have received in the absence of such
withholding.
ARTICLE 12 - PAYMENTS:
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All amounts owed by Borrower to the Bank hereunder will be paid to the Bank by
debiting the EUROS account of Borrower opened on the books of the Bank.
This account must be sufficiently funded. In the absence thereof, the amounts
owed will be posted to an account payable, which will not have the nature of a
checking account.
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ARTICLE 13 - LATE INTEREST - CAPITALIZATION:
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Any amount not paid on its normal or advanced due date will cause interest ipso
jure at the average weighted rate offered for transactions in Euro day by day
(EONIA) plus three percent (3%) per annum as of the due date. The same will hold
true for all expenses and disbursements advanced by the Bank in connection with
this operation for any reason and under any status whatsoever.
Interest will be capitalized if owed at least for a whole year, pursuant to
article 1154 of the Civil Code.
This clause will not prevent the payment of the debts indicated below.
ARTICLE 14 - PREPAYMENT:
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Borrower may prepay a draw-down on the credit in full or in part; the funds that
become available will be placed by the Bank for the period remaining between the
date of the prepayment and the initial due date of the ongoing interest period.
The replacement date on the rate indicated by the Bank at the time of the
request for reimbursement may lead to insufficiency or excess interest versus
the initial conditions of the drawdown.
Consequently, the parties agree that if the difference in interest found is
payable by the Bank, Borrower will pay back this difference to it.
ARTICLE 15 - WAIVER OF THE CREDIT BY THE BORROWER:
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Borrower will have the right, with written notice of fifteen (15) calendar days
sent to the Bank to definitively waive all or part of the Credit in advance.
In such case, the latest commission paid will remain in possession of the Bank.
Each waiver must be made for an amount in Euros at least equal to 100,000 EUR.
It will not take effect, unless it concerns an unused fraction of the Credit,
other than on the due date of the ongoing drawdown.
ARTICLE 16 - REPRESENTATIONS:
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Borrower represents:
- that, on the signing date hereof, there is no case of forced prepayment or
threatened forced prepayment pursuant to this agreement;
- that there is no lawsuit against it, pending petition or to its knowledge
any threatened lawsuit or petition that may cause substantial deterioration
of its financial situation;
- that currently it is not in default on the payment of any significant
amount owed for direct or indirect contributions, assimilated taxes, or any
significant amount owed to social entities under any status whatsoever.
ARTICLE 17 - SPECIAL COMMITMENTS:
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As long as Borrower is the debtor of the Bank or liable to be under this
agreement:
I - Borrower may not, without the agreement of the Bank:
- carry out, especially in the form of assignment or contribution to a
company, a transaction causing a reduction of one quarter of its fixed
assets versus their value on the day of this operation;
- give a surety on real estate properties, the goodwill (including
trademarks) and its securities portfolio;
II - Each year Borrower must deliver to the Bank, at the latest 180 days after
the closing of the corporate fiscal year, a certified true copy of the balance
sheet and other accounting documents required by law, certified by the Auditors
as well as the same consolidated documents.
III - In addition, BORROWER will send the Bank as soon as possible after their
preparation and at the latest 6 months after the close of the fiscal year for
the consolidated audited annual accounts, a conformity certificate (signed by
the Assistant General Director of Borrower and the auditors of Borrower)
attesting to the level of the financial ratio mentioned in article 19 below and
itemizing their calculation:
IV - BORROWER must inform the Bank within fifteen days:
- of any facts liable to significantly increase the value of its commitments;
- any change equal to or higher than 30% in the distribution of its capital.
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And, the Bank may carry out any control it deems necessary to assure the good
performance of this agreement.
ARTICLE 18 - MISCELLANEOUS CHARGES:
-----------------------------------
Borrower will pay the expenses of this agreement, its follow-up and
consequences, as well as all expenses and fees arising from the prosecution the
Bank may carry out, based on backup documents.
In addition, Borrower will pay to the Bank on the day it signs this agreement,
an amount of 1,000 euros net of tax (EUR NET OF TAX), for file expenses.
All amounts paid by the Bank in the stead and place of Borrower will constitute
an account receivable of the Bank against the Credit.
ARTICLE 19 - PAYMENT REQUIREMENT AND CANCELLATION:
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The Bank may cancel the Credit without judicial formality, and the amount of the
ongoing drawdowns will be payable ipso jure in the following cases;
1o) In the absence of payment on the due date of all or part of an installment
of principal and/or interest and/or commitment commission, fifteen days after
notice to pay, in spite of any partial payment made after the notice.
This notice to pay may be issued by simple registered letter with acknowledgment
of receipt.
The benefit of required payment remains in force, notwithstanding any subsequent
offers or deliveries.
2o) Eight days after the notice to pay, in any of the other cases below:
- default on any of the obligations arising from this agreement;
- use of the credit not in accordance with this object;
- inexactness in the justifications provided or the representations made
herein;
- severe deterioration of the financial situation, judicial liquidation,
dissolution or amicable liquidation of Borrower;
- total cessation or notable reduction in the operation of Borrower, arising
or not from a contribution to a company, including by merger or spin-off;
- merger or spin-off of Borrower;
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- refusal of Borrower's Auditors to certify its accounts, or certification of
the accounts with severe reservations;
- payment requirement before the term of an amount owed by Borrower to the
Bank or to any other lender under another credit or loan;
- occurrence of any fact liable to seriously affect the importance or value
of Borrower's assets or to significantly increase the value of its
commitments.
- in the event of non-respect of any of the following ratios:
- Net Consolidated Financial Debts/Consolidated Net Worth<1
- Net Consolidated Financial Debts/Gross Consolidated Operating Result<4
For the verification of the aforementioned ratios, the terms used are defined as
follows:
"NET CONSOLIDATED FINANCIAL DEBTS": Financial borrowings and debts + current
outstanding bank debts + other debts (if financial) - availability, these
items being picked up from the consolidated balance sheet of Naturex.
"CONSOLIDATED NET WORTH": Total own capital as it appears on the consolidated
balance sheet of Naturex.
"GROSS CONSOLIDATED OPERATING RESULT": Operating result + allocation to
amortization and provisions, the 2 terms as they appear in the consolidated
accounts of Naturex.
The calculations mentioned above will be made based on the latest annual
accounts of Borrower and for the first time based on the accounts at December
31, 2004.
Any modification of the accounting cutoff period must be the object of an
amendment to this credit agreement.
The Bank may claim at any moment the payment clauses hereunder, and its failure
to exercise its rights will not imply a waiver on its part.
The Bank may cancel the obligation of paying a drawdown or renewing a drawdown
in each of the cases of payment requirement established in paragraph 2) of this
article, as well as if an amount due is not paid for another credit or loan owed
by BORROWER to the Bank.
ARTICLE 20 - ASSIGNMENT OF RIGHTS AND OBLIGATIONS
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Borrower may not, under any circumstances, assign or transfer its rights and
obligations hereunder without prior written agreement of the Bank.
The Bank will have the right to assign or transfer all or part of its rights and
obligations hereunder to any quality credit Establishment or bank.
It is understood that the assignee of this commitment must post it to its books
either at its headquarters or with a branch located in a country which has with
France a tax agreement to avoid double taxation, that allows paying any amount
related to the loan without any withholding at source, deduction or tax
whatsoever.
ARTICLE 21 - CHOICE OF JURISDICTION:
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The Court of PARIS will be the only court competent for any dispute arising from
this agreement.
Made in Avignon, on December 20, 2004, in two counterparts.
word deleted
NATUREX NATEXIS BANQUES POPULAIRES
NATUREX NATEXIS BANQUES POPULAIRES
Site of Agroparc - X.X. Xxx 0000 Xxxxx-Xxxx Xxxxxxxx Xxxxxx
00000 AVIGNON Cedex 9 000, xxxxxx xx Xxxxx
Tel. x00 (0)0 00 00 00 00 00000 MARSEILLES Cedex 08
Fax x00 (0)0 00 00 00 40 Tel.: 00 00 00 00 00
SIRET 000 000 000 00000 Fax: 00 00 00 00 00
[signature] [signature]
