EXHIBIT (4)(xviii)
DRAFT SUBJECT TO CHANGES
TRANSLATION OF THE PUBLIC DEED AND LOAN AGREEMENT
DOCUMENTING THE CONCESSION
OF A LOAN TO PLYMOUTH RUBBER EUROPA, S.A.
NOTARY PUBLIC: Xx. Xxxxxxx Xxxxxxxx Xxxxx, Notary of Porrino.
DATE: 11 April 1997
NUMBER: 479
"LOAN GUARANTEED BY MORTGAGE AND GUARANTEE
NUMBER: FOUR HUNDRED AND SEVENTY NINE
In Porrino, my residence, on the 11th day of April
nineteen hundred and ninety seven.
Before me, XXXXXXX XXXXXXXX XXXXX, Notary Public of the
Association of La Coruna.
APPEAR
XX. XXXXXXX XXXXX XXXXXXX, married, economist, residing at
Porrinno, domiciled at Xxxxx Xxxxxxx xx Xxxxx xxxxxx 0,
holder of a National Identity Card, which he exhibits to
me, numbered 35.550.317.
XX. XXXXXX XXXXXXX XXXXX, manager of the office for company
banking, Vigo branch, of the Banco del Comercio, residing
at Vigo, domiciled at Xxxxx xx Xxxxxxxxxx xxxxxx 00-00,
holder of a National Identity Card, which he exhibits to
me, numbered 34.867.925.
XX. XXXX XXXX XXXX XXXXXXXX, duly empowered member of the
office for company banking, Vigo branch, of the Banco del
Comercio, residing at Vigo, domiciled at Xxxxx xx
Xxxxxxxxxx xxxxxx 00-00, holder of a National Identity
Card, which he exhibits to me, numbered 32.590.099.
XX. XXXXXXX XXXXXXX XXXXXXXXX, legally separated, residing
at Porrino, manager of the Porrino branch of the Banco de
Bilbao Vizcaya, with domicile at Xxxxx xxx Xxxxxxxxxxxx
xxxxxx 0, holder of a National Identity Card, which he
exhibits to me, numbered 35.997.966.
XX. XXXXXX XXXXXXX XXXXXXXXX XXXXXX, married, employee of
the Banco de Bilbao Vizcaya, residing in Porrino, with
domicile at Xxxxx xxx Xxxxxxxxxxxx xxxxxx 0, holder of a
National Identity Card, which he exhibits to me, numbered
36.602.902.
XX. XXXXXXX XXXXXX XXXXXXX, duly empowered person from the
Caja de Ahorros Municipal de Vigo, residing in Vigo,
domiciled at Xxxxx Xxxxxx Xxxxxx xxxxxx 0, holder of a
National Identity Card, which he exhibits to me, numbered
36.012.559.
All of them are of full legal age.
THEY INTERVENE:
a) Xx. Xxxxxxx Xxxxx Xxxxxxx, in the name and on behalf of
the mercantile entity "PLYMOUTH RUBBER EUROPA, S.A.",
Unipersonal Company, with corporate address at Porrino
(Pontevedra), Carretera Xxxxxxx-Xxxxxxx Km. 1,500;
constituted for indefinite time by Public Deed before the
Notary Public of Madrid, Xx. Xxxx Xxxxx Xxxxxxx Xxxx, on
August 26,1996, under number 3.241 of his official record
and registered in the Mercantile Registry of Pontevedra, in
Folio 49, Book 1.847 of Companies, PO-18.045.
Fiscal Identity Code number A-36269694.
Exercises this representation in virtue of the special
power, in the name of the represented, Xx. Xxxxxxx
Xxxxxxxxxxx Xxxxxxxx, granted before me on the present day
under number __________ of my official record; in execution
of the agreement of the Board of Administration, held ond
April, 7, 1997. From said Public Deed I transcribe: "......
To xxxxx xxxxxx to ... Xx. Xxxxxxx Xxxxx Xxxxxxx ..., so,
.... he may, by himself, subscribe in the name of the
company a loan, for the amount of 250,000,000 Pesetas which
shall be granted to the company by a syndicate of financial
credit entities formed by the Banco del Comercio, Banco
Bilbao Vizcaya and Caja Municipal de Ahorros de Vigo, as
well as: 1. To constitute on behalf of the above mentioned
credit entities mortgage on real states property of the
company, in the conditions established as convenient, apply
for the registration of said mortgage in the Property
Registry, grant the public deeds that may deem necessary
for clarification, amendment, and rectification to obtain
the final registration of the above mentioned mortgage in
the Property Registry. 2. To appear before the Notary
Public or the business agent of his choice to incorporate
the loan contract guaranteed by mortgage to a public deed
and to perform all acts that may deem necessary for the
conclusion and complete effectiveness of the same ... ".
Whatever is not established herein will not alter, vary,
condition or limit the preceding.
Xx. Xxxxx assures that the faculties he invokes are dully
in force and that the entity he represents subsists.
b) Xx. Xxxxxxx Xxxxx and Xx. Xxxx Xxxxxxxx in the name and
on behalf of the mercantile entity "BANCO DEL COMERCIO,
S.A.", with corporate address at Madrid, Xxxxx xx xx
Xxxxxxxxxx, xxxxxx 000, constituted for indefinite time
under the denomination of "Banco Hispano Suizo, S.A.", by
Public Deed on October, 12, 1920, before the Notary Public
of Madrid, Xx. Xxxxxxx Xxxxx y Bosca; Afterwards said
mercantile entity adopted the denomination of "BANCO DE
FINANCIACION INDUSTRIAL, S.A.", by Public Deed, on March 7,
1964, under number 1.303 of his official record; registered
in the Mercantile Registry of Madrid, in Folio 131 of Book
402, page 4.315. The present denomination of "BANCO DE
COMERCIO, S.A.", is the result of the merger carried out by
"BANCO DE FINANCIACION INDUSTRIAL, S.A." absorbing the
"BANCO DE COMERCIO, S.A.", adopting notwithstanding the
preceding, this denomination, as results of the Public Deed
granted on January 1, 1989, before Notary Public of Madrid,
Xx. Xxxx Xxxxx Xxxxxxx, under number 1 of his official
record, and registered in the Mercantile Registry of
Madrid, in folio 156, Book 1.063 general, 1.011 of section
3 of Companies Book, Page number 4.314-2, inscription
number 89.
Fiscal Identity Code number A-28000545.
They have faculties for this act by power of attorney
granted for them by Xx. Xxxxxx Xxxxxx Xxxxxxxx and Xx. Xxxx
Xxxxxxx Xxxxx Xxxxx, acting in the name and on behalf of
the "BANCO DE FINANCIACION INDUSTRIAL, S.A.", on November
30, 1988, before the Notary Public of Madrid, Xx. Xxxx
Xxxxxxx Xxxxxxxx Xxxxxx, under number 4.590 of his official
record, from which among others, I transcribe: "... for in
the name and on behalf of the "BANCO DE FINANCIACION
INDUSTRIAL, S.A." (INDUBAN) may exercise ... the faculties
.. under numbers ... to be indicated ... jointly... B)
Jointly, this is, with any other empowered person from the
Bank, who may be empowered upon the present power or any
other power, within the same faculties: ... 6. Grant loans
or credits. a) Grant loans or credits, financial or
commercial discounts, overdrafts in current accounts,
exceeds in credit accounts, or under any other modality, in
national or foreign currency, both the empowering entity
individually or jointly with any other public or private
entity, national or foreign, simple or with any type of
guarantee, personal, real, ordinary pledge or pledge
without transmission, mortgage or chattel mortgage, or any
other guarantee, as well as renew, defer, amend, extend,
reduce, decline, transmit, dispose, cancel, extinguish the
granted loans or credits, or those which the Bank is holder
whether they are simple or with any of the above mentioned
personal or real guarantees. b) To open documentary
credits, request the confirmation of the opened
documentary credits by this entity, confirm the credits
opened by other entity, advise documentary credits and in
all cases, whether they are revocable or irrevocable,
simple or with any of the above mentioned guarantees. c) To
intervene in the syndicated loans and accept the
designation as Agent Bank, Director Bank or any other
directive designation, both individually or jointly with
other loan entities, accepting all kind of compromises and
carrying out all acts for the performing of those
designations... 10.- Guarantees. ... c) Acceptation of
guarantees. = To accept and retain all kind of guarantees
and counter-guarantees, on behalf of the Bank, both real
and personal, mortgage or chattel mortgage, ordinary pledge
or pledge without transmission, or any other guarantee. d)
Substitution and cancellation of guarantees. = To
substitute, amend, postpone, divide, reduce and cancel and
totally or partially extinguish all kind of personal and
real guarantees, bonds, securities, pledge without
transmission or ordinary pledge, mortgage or chattel
mortgage, constituted on behalf of the Bank.
Thus it results from authentic copy of said Power of
Attorney public deed that they show me (registered in the
Mercantile Registry of Madrid, folio number 134, volume
number 1.063 general, number 1.011 of section 3 of
Companies Book, Page number 4.314, inscription 893), and
whatever is omitted will not alter, vary or condition the
above established.
Xx. Xxxxxxx Xxxxx and Xx. Xxxx Xxxxxxxx assure that the
faculties they invoke are duly in force and that the entity
they represent subsists.
c) Xx. Xxxxxxx Xxxxxx Xxxxxxxxx and Xx. Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxx, in the name and on behalf of the entity
"BANCO BILBAO VIZCAYA, S.A." (from now on, in this public
deed, "the Bank"), with Fiscal Identity Code number A-
48/265169, domiciled in Bilbao, Plaza San Nicolas 4, which
proceeds from merger, formalized in public deed authorized
by Notary Public of Bilbao, Xx. Xxxx Xxxxx Xxxxxxx Xxxxx,
on October 1, 1988, of the entities "Banco de Bilbao. S.A."
and "Banco de Vizcaya, S.A.", in which public deed was
adopted the present denomination. It is registered in the
Mercantile Registry of Vizcaya in the Volume 2.083, Book
1.545 of Section 3 of Companies, Folio 1, Page number
14.741, inscription 1.
They have faculties for this act:
From the public deed of power of attorney granted in the
name of said entity, by Xx. Xxxxxx xx Xxxxxx y Xxxxxxxx, on
the 1st of October nineteen hundred and eighty-eight,
before the Notary Public of Bilbao, Xx. Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, under number 4.903 of his official records,
registered in the Mercantile Registry of Vizcaya in Volume
2.083 general, Book 1.545 of Section 3 of Companies, Folio
57, Page number 14.741, inscription 6, in use of the
faculties granted in public deed authorized by the same
Notary Public in the same date.
The contents of this public deed, insofar interests to
point out herein, is: "... for each one of them, in the
name and on behalf of the "Banco de Bilbao Vizcaya, S.A."
and as for this entity and all its offices, Branches and
urban Agencies, established or to be established in the
future, both in Spain and abroad ... and jointly, with any
other duly empowered person who, in his turn, holds, at
least, the same faculties that may be exercise in each
case." = " ... 6 ... a) To grant loans and credits,
commercial discounts, overdrafts in current accounts,
exceeds in credit accounts, or under any other modality, in
national or foreign currency, both the empowering entity
individually or jointly with any other public or private
entity, national or foreign, simple or with any type of
guarantee, personal, real, ordinary pledge or pledge
without transmission, mortgage or chattel mortgage, or any
other guarantee, as well as renew, defer, amend, extend,
reduce, decline, transmit, dispose, cancel, extinguish the
granted loans or credits, or those which the Bank is holder
whether they are simple or with any of the above mentioned
personal or real guarantees. b) To open documentary
credits, request the confirmation of the opened
documentary credits by this entity, confirm the credits
opened by other entity, advise documentary credits and in
all cases, whether they are revocable or irrevocable,
simple or with any of the above mentioned guarantees. c) To
intervene in the syndicated loans and accept the
designation as Agent Bank, Director Bank or any other
directive designation, both individually or jointly with
other loan entities, accepting all kind of compromises and
carrying out all acts for the performing of those
designations. 10.- Guarantees. ... c) Acceptation of
guarantees. = To accept and retain all kind of guarantees
and counter-guarantees, on behalf of the Bank, both real
and personal, mortgage or chattel mortgage, ordinary pledge
or pledge without transmission, or any other guarantee. d)
Substitution and cancellation of guarantees. = To
substitute, amend, postpone, divide, reduce and cancel and
totally or partially extinguish all kind of f personal and
real guarantees, bonds, securities, pledge without
transmission or ordinary pledge, mortgage or chattel
mortgage, constituted on behalf of the Bank ..."
Thus it results from the copies of said public deed, which
are shown to me, in which the non transcribed will not
alter, vary or condition the established herein.
Xx. Xxxxxxx Xxxxxxxxx and Xxxxxxxxx Xxxxxx assure that the
faculties invoked are duly in force and that the entity
they represent subsists.
d) Xx. Xxxxxxx Xxxxxx Xxxxxxx, in the name and on behalf of
the "CAJA DE AHORROS MUNICIPAL DE VIGO" - "CAIXAVIGO", with
corporate address in Vigo - Xxxxxxx xx Xxxxxx Xxxxxx, 0 xxx
0 -, with Fiscal Identity Code number G-36600369;
Institution governed by the By-laws approved by General
Shareholders Meeting dated on the 18th June 1996, elevated
on to a public deed authorized by the Notary Public of
Vigo, Xx. Xxxxxx Xxxxx Xxxxxxx, the 19th of the same month
and year, under number 770 of his official records,
corrected by another public deed authorized by the same
Notary Public, the 21st of the same month and year, under
number 785 of his official records; registered in the
Mercantile Registry of Pontevedra in Folio 15 of the Book
1.134 of Companies, inscription 117 of Page number PO-
4.111. The first By-laws of the Company were approved by
Royal Order of August 7, 1880, created as "Caja de Ahorros
y Xxxxx xx Xxxxxx Municipal de Vigo" and changed the
actual denomination by agreement of the General
Shareholders Meeting of the company on February 1, 1989,
which was elevated on to a public deed authorized by the
Notary Public of Vigo, Xx. Xxxxxxx Xxxxxxx xx Xxx, on the
10th of March of the same year, under number 833 of his
official records.
He supports said representation with copy, which is shown
to me, of the public deed granted by the General Manager of
the "Caja de Ahorros Municipal de Vigo", Mr. Xxxxx
Xxxxxxxxx Xxxxxx, the twenty-first of November of nineteen
hundred ninety-four, before Notary Public of Vigo, Xx.
Xxxxxx Xxxxxxxx Xxxxxxxxx, under number 2.466 of his
official records, in his quality of General Manager of said
Savings Bank and in execution of the agreements of the
Administration Board dated 27th October 1994.
Resulting from said public deed (registered in the
Mercantile Registry of Pontevedra in Folio 99 of the Book
1.134 of Companies, inscription 127 of Page number PO-
4.111) Xx. Xxxxxx Xxxxxxx holds the following faculties,
among others: "...II.- ORDINARY BANK OPERATIONS."-
Constitute, defer, amend, renew, cancel or extinguish, in
the name and on behalf of the Savings Bank, all acts and
contracts regarding the operations of the Entity and all
other operation due to the banking activity as listed
herein, formalizing and subscribing all public and private
documents that may deem necessary: ... 8. Credits and
loans of all kind, without guarantee or with any kind of
guarantee (mortgage or chattel mortgage, pledge, ordinary
or without transmission, etc.), subscribing public deed
policy, as well as accepting those guarantees, enclosed the
superposition of these ... 18. Totally or partially cancel
mortgages or chattel mortgages and ordinary pledges or
pledges without transmission, granting the corresponding
payment letters, as well as division, segregation,
aggregation and release of mortgages and other guarantees.-
19. Request, accept, constitute and cancel bonds or
securities of any kind, jointly or individually whether
they are personal, cash or title pledging, in the name of
the Savings Bank or on behalf of a third (Areitio dixit)
person and to be duly effective in the sphere of contract,
whether private, civil, mercantile or labor ... 38.- ...
4.- The managers... Xx. Xxxxxxx Xxxxxx Xxxxxxx, may
exercise the following faculties: a) Jointly and severally,
anyone of them, those included in epigraphs ... 8 ... b)
... they will have to present certification granted by the
General Manager of the Entity by any of the Assistant
Manager, which supports that the operation has been
approved by the entity; and those included in sections 18
and 19 ..., they will have to present ... certification ...
when the amount exceeds 15,000,000 Pesetas.
Xx. Xxxxxx Xxxxxxx for the incorporation to the present
certification issued by Xx. Xxxxx Xxxxx-Xxxxxx Xxxxxx,
Assistanat Manager of "Caja de Ahorros Municipal de Vigo",
clearing that on the twenty-first of November of nineteen
hundred ninety-six the "Caja de Ahorros de Vigo" agreed the
participation in a syndicated loan operation of 250,000,000
Pesetas, with mortgage guarantee on behalf of "PLYMOUTH
RUBBER EUROPA, S.A.", for an amount of 83,400,000 Pesetas
and accept the bond of 26,666,666 Pesetas granted by ABN
AMRO, to answer to the payment of this loan operation, and
which issued in one sole sheet of common paper, I include
it to incorporate to the present deed.
Whatever is not established herein as not being necessary,
will not alter, vary, condition or limit the preceding.
Mr. Xxxxxxx Xxxxxxx assures that the faculties invoked are
duly in force and that the entity he represents subsists.
THEY HAVE, IN MY JUDGMENT, the necessary legal capacity to
grant the present public deed of LOAN GUARANTEED BY MAXIMUM
MORTGAGE AND GUARANTEE, and to that effect, they
STATE
A.- Xx. Xxxxxxx Xxxxx Xxxxxxx, that the mercantile entity
"PLYMMOUTH RUBBER EUROPA, S.A." is legal title holder, by
the title which shall be explained afterwards, of the
following property located in:
PROVINCE OF PONTEVEDRA, "MUNICIPIO XX XXXXXXX,
PARROQUIA DE ATIOS":
"RIO A RIO", "XXXXX XXXXX", XXXXX ANCHO, "XXXXX XXXXX
DEL REGATO" and "MARCO", mountain and furze with the
following buildings :
- A SINGLE-STOREY INDUSTRIAL PLANT, destined for
storage, which takes up a surface area of nine hundred
and twenty square metres (920 m2).
- INDUSTRIAL PLANT AND OFFICES, composed of ground floor
and first floor, in part. The ground floor destined for
industrial uses which takes up two thousand and forty
one square metres (2.041 m2) and a first floor for
office purposes which takes up three hundred and sixty
four square metres (264 m2).
- A SINGLE-STOREY INDUSTRIAL PLANT, which takes up a
surface area of five hundred and sixty square metres
(560 m2), destined for production.
All this forms one sole land of one hectare, thirty
three areas and forty centiareas, which limits: to the
North property of "Sial, S.A."; South, the company
"Solfer" and pool; East, from the company "Solfer" and
road from Porrino to Xxxxxxx xx Xxxxxxx, and West, Xxxxx
Xxxxxx Xxxx and "Xxxx X.X.".
TITLE: It belongs to them by virtue of universal and
patrimonial transmission due to spin-off of "PLYMOUTH
RUBBER EUROPA, S.A." and "CINTAS ADHESIVAS XXXXX X.X."
as result of Public Deed granted by the Notary Public of
Bilbao, Mr Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx, the 25th
February 1997, under number 406 of his official records.
The actual description of the property results from the
Public Deed of New York Declaration and Association,
granted by the preceding title holder "Cintas Xxxxxxxxx
Xxxxx, X.X." before the Notary Public of Porrino, Xx.
Xxxxxxx Xxxxxxxx Xxxxx, on the 27th of November of 1996,
under number 1.372 of his official records.
REGISTRATION: The property is registered at the Tuy Land
Registry, under book 171, volume 891, folio 177, estate
number 26.620.
CHARGES, LIENS AND REGISTRY INFORMATION: The property is
free of charges and limitations, and I, the Notary
Public, assert that the registry information obtained on
the tenth of April of the present year, consisting in a
simple note of the Tuy Land Registry, coincides with
the above exposed about the estate of charges.
Concerning the title holder the preceding title holder
is recorded, even though the spin-off Public Deed is
presented with estate number 1.509, of Diary 47, which
it has been taken away by the person who had presented
the public deed for the registration in the Mercantile
Registry; all this has been previously notified to the
granters and it is ratified in this moment by the
representatives of the borrower entity. Likewise I, the
Notary Public, expressly advise the appear that about
the obtained information the preceding Registry
situation will prevail before the presentation to the
Registry of the authorized copy of this Public Deed.
XXXX : Free of hirers and all kind of occupants, as
declared by X. Xxxxxxx Xxxxx Xxxxxxx.
URBAN SITUATION: There are no circumstances.
ADMINISTRATIVE REGISTRY: The urban contribution is
established with references E416071 0001B0 and E416072
0001YQ relating to the Property register. The invoices
corresponding the 1996 fix assets tax ("IBI") is
incorporated in this copy obtained in my bureau.
B.- Xx. Xxxxxxx Xxxxx Xxxxxxx, that the mercantile
entity "PLYMOUTH RUBBER EUROPA, S.A." (from now on the
BORROWER) has appoint the LENDER entities requesting a
loan of TWO HUNDRED AND FIFTY MILLION PESETAS
(250,000,000).
C.- That the LENDER entities agree to grant the BORROWER
the requested loan.
D.- That, in consequence, the parties agree in
formalizing a Syindicated Loan Contract with the
following,
CLAUSES
FIRST.- Amount of the Loan
1.1. Total compromise on the part of the Lenders
The banking entities listed under clause SECOND below
hereby jointly and separately make available to the
Borrower a loan up to a limit of 250,000,000 (Two
Hundred and Fifty million) pesetas, of which amount the
Borrower may dispose subject to the conditions
established in the present Agreement.
1.2. Compromise assumed by the Borrower
The Borrower hereby accepts the loan and obliges to
return to the Lenders the funds withdrawn, on each and
all of the scheduled dates established in clause
ELEVENTH, as well as to pay, on the dates and in
accordance with the conditions established in the
present Agreement, all interests and commissions
accrued by the loan as well as the expenses and taxes
that it may give rise to.
SECOND.- Distribution of the loans and nature of the rights
and obligations of the Lenders
2.1 Total amount of the loan
The Lenders shall make available the total amount of
the loan in accordance with the following distribution:
ENTITY
UNDERTAKING
CAJA DE AHORROS MUNICIPAL DE VIGO 83,400,000 Pesetas
BANCO DE BILBAO VIZCAYA, S.A. 83,300,000 Pesetas
BANCO DE COMERCIO, S.A. 83,300,000 Pesetas
2.2 Independent nature of the obligations of the Lenders.
The contractual obligations are assumed by The Lenders
in a joint but separate manner.
Each one of the Lenders may exercise its own rights in
an individual way, up to the limit of his participation,
without prejudice to the exercise of the
rights which may correspond to the rest of them, unless
expressly agreed otherwise. Each one of the Lenders may
also, individually, take any many extra-judicial
actions directed to the conservation and defense of the
rights of the rest of the Lenders, except for the Agent,
who, in the cases hereby established, may carry out actions
directed to the conservation and defense of the rights of
The rest of the Lenders. Each one of the Lenders shall
only be entitled to exercise its own individual rights.
In the event that any one of the Lenders does not make
the funds available to the Borrower, through the agent,
on the time and under the conditions hereby
established, this shall not affect the obligations of
the rest of the Lenders, who shall be exclusively
obliged to provide the funds up to the limit of their
respective undertakings, notwithstanding the legal
actions against the non-complying Lender which may
correspond to the Borrower.
2.3. Majority of Lenders
For the contractual situations upon which this may be
necessary, it shall be understood as "majority" of
Lenders the conjunction of those whose interests
represent, at a given time, more than 50% (Fifty per
cent) of the total amount of the loan or of the
outstanding amount of the loan, if applicable.
2.4.The Agent
CAJA MUNICIPAL DE AHORROS DE VIGO assumes the position
of Agent to the present loan Agreement, together with
all the rights and obligations which, in consideration
to said role, are conferred to it under the present
Agreement.
THIRD.- Special accounts for the loan
3.1. The Agent's accountancy
With regards to the present Agreement, the agent, as
such, shall open a special credit account in favor of
the Borrower. The agent shall debit on that account the
amount of the funds withdrawn by the Borrower, as well
as the accrued interests over the loan, the
commissions, the expenses, delay interests, additional
costs and all any amounts which, according to the
present agreement, are payable by the Borrower.
Equally, all amounts received by the Agent from the
Borrower shall be credited on the same account, so that
the balance of said account represents, at any given
time, the total amount owed by the Borrower to the
Lenders.
3.2. Accountancy of the Lenders
Each one of the Lenders shall open in its accountancy a
special account for the loan under the name of the
Borrower, in which it shall debit all amounts given to
the Borrower through the Agent, as well as the accrued
interests over the loan, the commissions, the expenses,
delay interests, additional costs and all any amounts
which, according to the present agreement, are payable
by the Borrower. Equally, all Lenders shall credit on
the same account all amounts received by the Borrower,
so that the balance of said account represents, at any
given time, the amount owed by the Borrower to each
said Xxxxxx.
3.3.Certification of the balance of the accounts.
With regards to the loan being or not judicially or
extra-judicially claimable the parties agree to
consider as the outstanding claimable amount the figure
resulting from the balance of the accounts referred to
in the present clause, unless the existence of an
error, falsehood or any other obstative circumstance is
proven by whoever invokes it. The liquidation of the
account shall be carried out by the Agent, or by each
one of the Lenders in accordance to whatever results of
their respective accounts, when reduced to their own
individual undertaking, thus considering as the
outstanding claimable amount the figure established in
the certification issued by the Lender in question, as
long as a Public Notary or Stock Broker confirms, in a
public document or by an official confirmation written
out on the certification, that the figure on said
certification agrees with the balance of the special
account, and that the latter has been liquidated in
accordance to the agreed rules.
FOURTH.- Withdrawals
4.1 Withdrawals of loan funds
The Borrower shall have available the total amount of
the loan on the eleventh of April of nineteen hundred
and ninety seven by means of a sole
withdrawal of 250,000,000 pesetas.
4.62. Funds to be made available to the Agent
Each of the Lenders shall, notifying it to the Agent by
fax or telex, make immediately available to the latter
the corresponding amount prior to 12 a.m. on the date
on which the funds are to be withdrawn, with
effectiveness on that same date, by crediting said
amount to the account 2080 which CAJA MUNICIPAL DE
AHORROS DE VIGO has at the Bank of Spain in Madrid,
using the Orders of Transfer of Funds System (O.M.F.)
or to whichever other account the agent may indicate in
the future.
4.73. Delivery of the funds to the Borrower
The Agent shall deliver to the Borrower the funds
requested on the date fixed, after twelve o'clock (12:00 a.m.)
with effectiveness on that same date, for the amount requested
or, failing that, for the amount credited by the Lenders on the
Agents account.
The delivery shall be effected by crediting said amount
in account number 2080/0054/004002314, which the
Borrower has opened in CaixaVigo's branch in Porrino.
FIFTH.- General rules concerning the interests
5.1.Interest accrual
The amounts withdrawn of the loan shall accrue daily
interest in favor of the Lenders at the annual nominal
rate which, for each period, is established in the
following clauses.
5.2.Interest payment
The accrued interests shall be paid in money by the
Borrower on the last day of each period of interest,
not being it necessary for the Lenders to request said
payments.
5.3.Liquidation and calculation of the interests.
The interest shall be calculated for the days
effectively consumed within each interest period. With
regards to the accrual and liquidation of said
interest, it shall be deemed as the first day of each
interest period as effectively not consumed, and the
last day of said period, as effectively consumed.
The calculation of the interests corresponding to each
liquidation period shall be carried out multiplying the
amount of the withdrawn and not re-paid funds times the
percentage of the nominal interest rate applicable to
said period and dividing it by One hundred.
The nominal interest rate applicable to any given
period shall be determined dividing the annual nominal
interest rate applicable by 360 and multiplying the
result by the number of days of the period of
liquidation.
5.4.Binding nature of the interest rates
The annual nominal interest rate corresponding to each
interest period, as calculated in accordance with the
rules herein established, and communicated equally
according to what is established in the present
contract, shall be deemed as accepted by the Borrower,
and shall be binding for the latter if the Agent does
not receive, for whichever cause, including "force
majeure", prior to 9 a.m. on the date on which the
interest period is to start, a communication from the
Borrower stating that it does not accept the applicable
interest rate. The Borrower hereby expressly renounces
any other term for communication to which it may be
legally entitled.
If the non acceptance of the interest by the borrower
were to be communicated within the period established
in the preceding paragraph the borrower will have to
reimburse all pending capital, as well as any other
amount due by virtue of the present agreement within
the thirty days following that date, an interest will
accrue, at which ever rate was applicable to the
preceding interest period.
5.5.Error in the calculation of the interests
Should there be a manifest error in the calculation of
the applicable interest rate, the Agent shall
immediately amend said error, the effects of said
amendment being effective as from the date on which the
erroneous interest rate was first applied.
SIXTH.- Interest periods
6.1. Division into interest periods
With regards to the present Agreement, it shall be
understood as Interest Periods: each one of the
three month periods following the date on which the
funds are withdrawn and until total repayment of the
loan in accordance with clause ELEVENTH hereafter, or,
should it be applicable, the interest period
established in the second paragraph of clause FIFTH,
point 5.4.
6.2.Maximum duration of the interest periods
Under no circumstances may the last date of the last
interest period may exceed the date of the loan final
repayment. If the interval between the first day of the
last interest period and the date of the loan's final
re-payment is less than three (3) months, the
duration of said interest period shall be that of the
period of time which goes from the first day of the
last interest period to the date of the loan's final re-
payment.
SEVENTH.- Annual nominal interest rate applicable to the
loan
7.1.Normal annual nominal interest rate. Determination.
The normal annual nominal interest rate applicable to
each interest period shall be determined by the Agent
by adding up the (a) MIBOR plus the (b) Margin.
(a) It is understood as MIBOR the interest rate applicable
by the Madrid inter-banking Market, for a one year period,
according to the quoting shown by REUTERS' MIBOR screen for
deposits in pesetas at 11 a.m. of the working day
immediately preceding the date on which each interest
period is to commence, for a period of twelve (12) months.
To said resulting MIBOR shall be added the usual
costs for obtaining funds at the Inter-Banking
Market, there including broker fees as well as any
other applicable tax, levies or charges, be them
nationally imposed or not, which are now applicable
or may become applicable in the future to the
obtaining of funds in the Inter-banking Market or for
the use of the services of a broker.
(b) To the result of the addition of the MIBOR plus the
expenses mentioned under (a) above, it shall be added an
additional Margin equal to 1.25% a year. Said margin will
remain invariable for the duration of the loan.
Should the addition of the MIBOR plus the Margin result
not to be a multiple of 1/8 % , said figure shall be
rounded up to become a multiple of 1/8 %.
If at the time and date fixed for the determination of
the interest rate there were to be no official quoting
for the twelve month interest, the interest rate shall
be immediately fixed at that established for the next
inferior period of six months, three months, one
month, fifteen days, seven days and one day, in this
order of preference, for which there is an
official quoting.
7.2.Substitute Interest rate
In case that, for whichever reasons affecting the
Madrid Inter-banking Market it becomes impossible to
determine the interest rate in the manner prescribed in
clause 7.1 above, a substitute interest rate shall be
calculated and applied as follows:
Once the Agent realizes the need to apply a substitute
interest rate, it shall so notify it, simultaneously,
to the Borrower and the rest of the Lenders, prior to
11:30 a.m. on the working day before the interest
period is due to start.
The substitute nominal interest rate is understood to
mean the addition of the substitute MIBOR plus the
usual costs for obtaining funds at the Inter-Banking
Market, plus the Margin. The substitute MIBOR shall be
the average of the interest rates offered for deposits
in pesetas to the Reference Entities of the Madrid
Inter-Banking Market at around 11 a.m. on the working
day immediately preceding to the date in which the
interest period is to commence, for terms of twelve,
six, three or one month (in that same order of
preference). To the substitute MIBOR shall be added the
usual costs for obtaining funds at the Inter-Banking
Market plus a 1.25% annual Margin. The result of this
addition shall be rounded up to the nearest multiple of
1/8 %, should it not be a multiple thereof.
With respect to the present clause and the present
Agreement, the Reference Entities shall be the
following:
Bank of America S.A.E.
Mitshubishi Bank, Sucursal en Espana.
Banco Central Hispano Americano, S.A.
It shall be understood as the "majority of the
Reference Entities", two of the above mentioned.
Should any of the Reference Entities merge with another
banking entity, or be absorbed by another banking
entity, the new resulting entity shall substitute with
respect to what is established in the present
Agreement.
7.3. Communication of the normal and substitute interest
rates
Once the normal or substitute interest rate, as
applicable, has been calculated, the Agent shall so
notify the Borrower and the rest of the Lenders before
2 p.m. on the working day prior to the date on which
each interest period is to commence.
Every time it may be necessary to apply a substitute
interest rate, the interest period shall be of 15
(fifteen) days duration.
EIGHT.- Delay interests
8.1.Delay interests. Accrual and calculation
Notwithstanding the termination right granted to the
Lenders, should the Borrower delay the fulfilment of
its payment obligation, for whichever cause, even if
this happens due to no fault of the Borrower, the
latter shall be obliged to satisfy, without need of a
prior request in that sense, a delay interest as
established under clause 8.2 below.
The delay interest shall accrue day on a daily basis,
being liquidated at the end of the corresponding month,
and will be drawn over the amounts whose re-payment has
not been made, taking as base a year of three hundred
and sixty (360) days.
The accrued and non satisfied interests will be
capitalized at the months' end, as if an increase of
the capital, thus accruing additional delay interests
at the corresponding rate.
8.2 Delay Interest Rate
The delay interest rate will be determined
by adding four percentage points (4%) to
the interest rate established in clause SEVENTH
hereafter ..
NINTH.- Commissions
9.1 Opening Commission
The Borrower will pay the Agent, only once, as from 30
days after the signature of the Agreement or, if this
were before, as from the first disposition, a
commission of the one percent (1%), as opening
commission over the total amount of the loan.
This commission will be distributed by the Agent among
the Lenders in the proportions agreed with the same.
9.2.Cancellation Commission
The Borrower will pay the Agent, whenever this occurs,
an early cancellation commission of one percent, over
the amount to cancel, should cancellation occur the
first three years of the life of the loan, or a
commission of point five percent (0.50%) over the
amount to cancel if the cancellation occurs during the
fourth or fifth year of life of the loan. As from the
fifth year no cancellation commission shall be due.
This commission will be distributed by the Agent among
the Lenders according to their undertakings in the
loan.
0.0.Xxxxxx Commission
The Borrower will pay the Agent, as Agency commission
upon the withdrawal of the loan 0.50% over the total
amount thereof, on the date of the first disposal in a
sole time.
TENTH.- Expenses, Taxes and costs Increases
10.1Expenses and Taxes
The Borrower assumes as his charge the expenses, taxes,
charges, fees and other pecuniary obligations, present
and future, which may arise or accrue as consequence of
the preparation, celebration and execution of the
present Agreement. Among those and merely for
informative purposes, are included:
a) The fees, brokerages and expenses of the public
Notaries or Stock Brokers.
b) The Local, Provincial, Autonomous and Estate levies
and taxes applicable to the constitution, modification,
execution, and extinction of the same.
c) The expenses accrued as consequence of the judicial
execution of the Agreement.
The Agent is hereby enable to pay the amounts owed by
the borrower, in case of lack of payment by the
borrower, and debit them in its account and claim those
from the borrower at any time. The debited amounts will
accrue, as from the date they are debited and without
the necessity of a prior requirement, delay interests
in accordance with what it is established in clause
EIGHT, and shall be guaranteed by the amount provided
for expenses in clause EIGHTEENTH .
10.2 Increase of costs for the Lenders
In case that due to legal or statutory disposition,
whatever their origin, additional obligations, such as
the respect of certain coefficients, reserves or
necessary deposits, are imposed on any or all of the
Lenders, thus producing an increase of the costs of the
funds that the Lenders are to employ in the financing
of the present loan, or in case limitations were
imposed, be them limitations over the amount of the
commissions or the interests, or be them of any other
different nature, which would imply a decrease of
amount of the payments to which the Lenders have right
by virtue of this Agreement, the Borrower, will be
obliged to compensate them in the amount of the
increase of the costs of the mentioned funds or the
decrease of the payments, as long as the Lenders
justify with documentary evidence that they have
incurred in a repeated increase of the costs and/or
determine by means of a detailed liquidation the
decrease of the amounts of the payments.
10.3Deductions and retentions.
All the amounts which the Borrower is to pay in
accordance with the present Agreement will be satisfied
clear of any deduction or withholding tax, being the
Borrower liable for payment of any taxes which may, now
or in a near future, be applicable to said payments,
there excluding, in any case, Corporation Tax payable
on the earnings obtained by the Lenders.
10.4. Reimbursements
In case the Borrower reimburses, for any cause, the
amount of any withdrawal of funds, on in a different
date to the one agreed, it will be obliged to
communicate the Lenders fifteen days in
advance.
ELEVENTH.- Duration of the Loan. Normal and advance
Repayment
11.1. Duration of the Loan.
The Loan will be definitively due on the eleventh of
April of the year 2007, date in which it
the balance in favor of the Lenders shown in the
accounts will have to be definitely satisfied.
11.2 Normal Repayment of the Loan.
The loan will be repaid through twenty (20)
six month installments, all equal and
consecutive, each for an amount of Twelve Million Five
Hundred Thousand (12,500,000) Pesetas each one, being
the first of them payable on the eleventh of October of
1997 and the last one on the eleventh of
April of the year 2007, date on which the
Loan will be definitively due.
11.3Advance Repayment of the Loan.
The Borrower will be able to partially or totally repay
the loan in advance at the date of termination of an
interest period.
Were early repayment to be partial, this will be made
for a minimum of Thirty Million Pesetas
(30,000,000) or for that amount plus one or several
times Twelve Million Pesetas (12,000,000).
Partial repayments of a lower amount will only admitted
when said repayment constitutes the total repayment of
outstanding amount of the loan.
For any advance repayment to take place it will be
necessary that the Borrower notifies it to the Agent
with a previous notice of fifteen (15) working days.
In the advance partial repayment notice the Borrower
will give details as to the amount and date (working
day) on which the same shall take place. If the advance
repayment were to be total, it will indicate the date
(working day) on which this will take place.
Each advance cancellation notice, total or partial
shall be irrevocable and its non fulfilment, concerning
the amount or the date of the repayment, shall
constitute a cause for the total termination of the
Agreement.
The Agent will communicate the receipt of the
notification to the Lenders within the next three (3)
working days.
The advance repaid amount will be applied by the
Lenders to reduce the amount of the rest of the
repayment installments, without causing any
modifications to the schedule of the normal repayment
contained in point 11.2 of this clause.
The commissions for advance cancellation are those
specified in point 9.2 of clause NINTH.
TWELFTH.- Termination of the Agreement
12.1 Causes of the resolution
The present Agreement may be terminated by the Lenders,
who may demand payment of whichever amount is due on
that date, prior to its normal termination date upon
the occurrence of the following:
a) If for whatever cause registration of the present
public deed in the Property Registry is denied.
b) If there were to be any charge, encumbrance or lien
over the mortgage property which has not been specified in
the present deed, even if those are of a posterior date.
c) By annulment or revocation, even if not final, of
the administrative resolutions which have authorized
the use of the land, the construction of the
buildings, or the exercise of the business at the
mortgage property except in case of correction of the
same in a period of 40 days.
d) When it has not been sufficiently proven that the
property is insured and that the Insurance Company is
aware of the existence of the loan within the thirty
day period counted as from the date on which the
Agent so requires.
e) Lack of payment by the Borrower at its corresponding
payment date of any of the amounts due by virtue of the
present Agreement, be those part of the capital, interests,
commissions, expenses or any other concept, once a maximum
period of ten days as from the said date, has elapsed.
f) In case the insurance premiums over the mortgage
property or the taxes and expenses related to those which
are preferential to the mortgage, are not paid on time.
g) Lack of payment on time by the borrower of any other
monetary amount arising from this agreement.
h) Non fulfilment of any of the obligations assumed by
the Borrower by virtue of the present contract and which
are indicated by the Agent and not remedied by the borrower
within fifteen days as from said indication.
i) Non fulfilment by the Borrower of any payment
obligation or compromise with respect to third parties for
an amount of over Twenty Five Million Pesetas
(25,000,000), or in case there is an attachment of over
that amount, over the borrower's property, unless it is
withdrawn within thirty calendar days; or in case the
borrower formally requests from its creditors a moratory in
the repayment of its monetary obligations, or when, in
whichever way their insolvency or lack of
liquidity.
j) When it is proven that the borrower has hidden
information, or supplied false and inaccurate information
of material relevance to the lenders, even if there has
been no malice on the part of the borrower; or in case the
borrower does not provide the Agent with the balance sheet
and the profit and loss account corresponding to the last
financial year within the fifteen day period following the
requirements to do so.
k) Upon the essential alteration of the corporate object
of the borrower, its cessation in its activity, its
transformation, liquidation, dissolution or merger save
express consent from the lenders.
l) If the borrower files for bankruptcy or suspension of
payments, or a request for those is filed by its creditors.
m) Upon the existence of any other cause which according
to Xxx gives way to the termination or advance expiration.
n) Upon the impossibility of establishing an interest
rate in accordance with the agreed rules, or upon non
acceptance by the borrower of the applicable interest rate.
o) Ruin, demolition, or deterioration of the mortgage
property if the damage to it is more than 1/4 of its value
and the owner or possessor of the same does not proceed to
its repair within two months.
p) In case the Borrower, three months before the
expiration of the guarantee mentioned in the clause 21,
does not provide the Borrowers a new bank guarantee in the
same conditions as the existent guarantee or sufficient
proves (as established by the Borrowers) that the
guarantee will be renewed in the right time and conditions,
the Borrowers may terminate the present agreement.
12.2 Termination proceedings
Upon the existence of any of the circumstances
mentioned in point 12.1, the Lenders as Majority will
be able to totally terminate the loan Agreement.
In any case, and upon the existence of any of the
circumstances established in point 12.1, each Lender is
unilaterally entitled to terminate the present
Agreement in the part that it may correspond to it.
12.3 Effects of termination
Once the Agreement is partially or totally terminated,
the Lender will be obliged to the reimburse part or the
whole of the amount of the loan, whichever applicable,
as well as its interests, commissions, expenses and any
other legitimate concept within the next twenty
(20) natural days as from the date of notification of
the termination, being it applicable to each interest
period in course during said period (which shall not be
extendible), the last interest rates notified by the
Agent and which will be understood as accepted by the
Lender to the sole and exclusive effect of practicing
final liquidation. The Borrower hereby accepts the
complementary liquidation of interests resulting from
the application of the above mentioned difference.
Once the period has elapsed without repayment by
Borrower of the pending amounts, the Lenders shall be
entitled to file the corresponding legal actions, and
the amount then due amount to the Lenders shall
commence to accrue delay interest as established in
clause EIGHTH.
12.4 Partial Resolution
The amounts repaid by the Borrower as a result of the
exercise of a partial termination action of the
Agreement as established in the last paragraph of point
12.2, shall not be subject the obligation of
proportional distribution established in points 13.3 of
clause THIRTEENTH.
THIRTEENTH.- Payments to be made by the Borrower.
13.1 Form of Payment
All payments to be made by the Borrower to the Lenders
or to the Agent according to the present Agreement,
shall be made without the necessity of a prior
requirement in that sense, before 10.00 a.m. on the day
on which said payment is due by crediting the
corresponding amount in the account number
2080/0054/004002314/1 in favor of the BORROWER that
keeps with the Agent at the branch of CAJA MUNICIPAL DE
AHORROS DE VIGO in Porrino, which, to all effects shall
be deemed as the payment address. If the day of payment
falls on a non working day, the date of payment shall
then be the next working day, unless the next working
day is part of another month of the Gregorian calendar,
in which case payment shall be due on the working day
immediately preceding.
All payments which, in the concept of capital or
interests, are made by the borrower in relation with
this contract, will be distributed by the Agent among
the lenders in such a way that all the lenders are paid
in proportion to their participation in the loan, at
any given time. The Agent shall credit the
corresponding amounts to the lenders by the transfer of
said amount to the account which each one of them has
at the Bank of Spain.
Any possible rights which may entitle the lenders to
obtain payments from the borrower based on any other
cause than those contained in the present agreement
will not be affected by what has been established
earlier on.
13.2 Allocation of Payments
The payments made by the Borrower in connection with
the present Agreement, will be charged to the longest
standing due amounts resulting from this Agreement in
the following order:
1.- Delay Interests
2.- Commissions
3.- Taxes
4.- Expenses
5.- Indemnities and additional costs
6.- Judicial Costs
7.- Ordinary interests
8.- Principal of the loan, withdrawn and pending
repayment.
13.3 Payments made to the Lenders
With prejudice of established in point 12.4 of clause
TWELFTH, if any of the Lenders were to
receive at any moment payment of any outstanding amount
in accordance to the present Agreement, they will
notify it to the Agent and to the rest of the Lenders,
and they shall then internally proceed to carry out the
necessary adjustment to ensure that each one of the
Lenders receives the sums paid by the Borrower in the
proportion which corresponds to its undertaking of the
total amount of the loan.
FOURTEENTH.- Declarations
14.1Declarations made by the Borrower
The Borrower makes the declarations listed hereinafter
to the Lenders. The Lenders, in consideration thereof,
grant the present Loan Agreement based on the accuracy
and veracity said declarations. The Borrowers
declarations are as follows:
a) The Borrower is a "Sociedad Anonima" (Stock Company)
of Spanish Nationality, validly incorporated and duly
registered at the Mercantile Registry, with independent
legal personality and sufficient legal capacity to enter
into the present Agreement, and to assume all obligations
herein established.
b) The Borrower is up to date with all its social,
mercantile, civil, labor and tax obligations.
c) No judicial or administrative measure/action which
could adversely influence (i) the Borrower's economical
situation or (ii) its ability/capacity to comply with all
the obligations assumed vis a vis third parties, there
including the Lenders, has been initiated or, to the best
of its faithful knowledge, is there a risk of it being
initiated.
d) All accountancy and financial reports and accounts
that the Borrower has facilitated to the Lenders are
correct and exact and they reflect, in accordance to the
accountancy principles generally accepted in Spain and
which have been uniformly applied by the Borrower for all
past years, the real economical and financial situation of
the Borrower.
e) On this date of the execution of the present
Agreement, there does not exist any circumstance or
omission, which could distort or leave without effect the
documents and information referred to in the preceding
point d), as for the loyal acknowledge and comprehension
of the Borrower.
The Borrower has obtained all necessary permits and
authorizations and has fulfilled all necessary
requisites for the execution of the present
Agreement, this credit operation not violating any
legal, statutory or contractual obligation binding to
the Borrower, being the obligations herein contained
thus valid and enforceable by the lenders. The
granting of the present Agreement does not and shall
not result in the constitution or enlargement or any
mortgage, pledge, or charge of any other kind on any
of the Borrower's assets, except for the one
established for the Borrowers.
14.2 Subsistence of the Borrower's declarations
The declarations herein made by the Borrower in favor
of the Lenders shall outlive the granting of the
present Agreement and shall be understood as repeated
by the Borrower for the duration of the Agreement.
FIFTEENTH.- Obligations
The Borrower, for the duration of the present Agreement,
hereby assumes the following obligations towards the
Lenders:
a) Not to alter its legal status or nature by
dissolution, transformation, merger or total assignment of
its assets and liabilities.
b) To immediately (and in any case within a period of no
more than three working days) inform the Agent about any
situation which constitutes or may constitute non
compliance or be a cause for early termination of the
present Agreement, or any other circumstance which has or
may have a substantial adverse effect on the ability to
fulfil the obligations herein contained.
c) To immediately, (and in any case within a period of no
more than three working days,) inform the Agent about any
action or suit/claim, arbitration, proceeding, judicial or
administrative investigation, or any other kind of
proceeding the result of which may have an adverse material
effect on its business, properties or assets.
d) To maintain all its assets insured with a well reputed
insurance company. The insured amounts shall correspond
with the real value of said assets and, in any case, the
insurance policy may not be lower than 170,000,000 pesetas.
The declaration herein made must be annually proven to the
Lenders through the Agent. The Borrower equally obliges
to keep up the premium payments and to fulfil all
obligations imposed by the insurance policies already in
force or which may be entered into in the future.
e) To keep and maintain all and any properties, rights,
faculties and authorizations necessary for the normal
conduction of its business and, in any case, not to
dispose, in whichever way it may be, of all or part of its
fixed assets without receiving its due worth.
f) Notwithstanding the preceeding, the Borrower obliges
not to spin off or segregate assets of a total value of
over 20% of its total overall assets to a third party,
without the prior written consent of the Lenders, unless
this does not imply a decrease of the Borrower's total net
worth.
g) To carry out as many acts, and grant as many public or
private documents as may be necessary to ensure that the
credit rights of the Lenders resulting from the present
Agreement enjoy, at all times of at least the same status
and privileges as those which may correspond, at present or
in the future, to any creditor with the exception of (i).
The credit rights corresponding to third party creditors
with a "real" guarantee granted prior to the present
Agreement, however said guarantee may not be extended,
increased or prolonged and (ii) Those rights of credit
evidenced on a public deed or a public policy issued by a
Stockbroker granted prior to this Agreement, and (iii)
those rights of credit which are privileged or singularly
privileged as listed in points 1,2 and 3 of article 913 of
the Code of Commerce as long as said privilege does not
result from a voluntary act on the part of the Borrower
directed to give way to such privilege as well as (iv) the
preferential rights granted to the workers by article 32 of
the Workers Statute.
As a consequence of the preceding, the Borrower, unless
authorized by the Lenders, shall not grant, do or favor
the granting by the third parties of any real or
personal guarantees in favor of other creditors, neither
shall it carry out any act or favour the carrying out of
any act by a third party which may grant another creditor
a pre-eminence or privilege in the repayment of its
credit superior to those which correspond or may
correspond to the Lenders by virtue of the present
Agreement, with the exception of those acts or guarantees
which result on a contingency for the Borrower of less
than 20% of the total value of its assets.
h) To apply for as many authorizations or permits as may
be necessary, at present or in the future, for the
conclusion and fulfilment of the present Agreement, should
any be necessary.
i) To take all necessary actions so that any Company in
which the borrower holds a majority or substantial
shareholding may also carry out or refrain from carrying
out all actions which the Borrower has obliged to carry out
or refrain from carrying out in accordance with whatever
is established in the preceding points e), f) and g). All
acts carried out by entities belonging to the same
corporate group - understanding as such those which in
accordance to article 42 of the Code of Commerce are to
consolidate its accounts with the Borrower - are hereby
excluded from the preceding obligation.
j) To hand over to the Agent the first copy of the
present Public Deed, once it is duly registered at the
Property Registry, and hand a copy thereof to each one of
the lenders.
k) To hand over a certification from the Property
Registry evidencing that the mortgage over the property is
duly registered in accordance with the clauses established
herein, and that there are no charges or limitations either
registered or recorded (nor documents presented to this
effect) which may be preferential to the present mortgage
or may diminish its effectivity, and that the registry has
no registration concerning any limit as to the owners
faculty to freely dispose of the property.
l) To hand over the policy and other documents which
evidence that the property is insured, and in which the
lenders rights are established.
The borrower undertakes to obtain complete and correct
compliance of the preceding obligations within the term of
One Hundred and Twenty (120) days as from today, after
which term the lenders may exercise their right to
terminate the contract in accordance with the provisions of
clause TWELVE.
SIXTEENTH.- Assignments.
The BORROWER will not be able to assign, transfer,
substitute or surrogate the obligations and rights
contracted in the present contract, except express consent
in writing of the Lenders.
During the life of the contract any of the LENDERS will be
able to partial or totally assign or transfer the loan
participation to other of the LENDERS or to a third party,
whatever is the assigned participation amount, whenever the
following requirements are fulfilled:
a) That the assignment is of its contractual position to
expiration.
b) That the assignment coincides with an interest period
of expiration date.
c) That the assignment does not imply a cost increase,
taxes or expenses for the BORROWER.
d) That the participation amount purpose of the
assignment is not inferior to one hundred millions of
pesetas, unless the total participation is assigned and
this is of an inferior amount to the above mentioned one.
e) That the assignor informs the Agent by written notice
and this to the BORROWER about the assignment project and
name, social address and telefax number of the assign
entity.
The assignments will only have effect with respect to the
BORROWER, the LENDERS and the Agent when all the
requirements expressed in the above points have been
fulfilled and are formalized in a public document.
SEVENTEENTH.- The Agent.
17.1 Appointment.
The LENDERS appoint Caja de Xxxxxxx at Vigo as Agent,
who accepts the appointment.
17.2 Special Warrant.
Unimpaired the joint character of the LENDERS in the
operation with regard to the development and operative
of the same, the Agent acts, not only for himself but
as special agent with an irrevocably character of the
LENDERS, understanding that payments from any nature
derived from the contract will have to be made by the
BORROWER precisely to the Agent, providing liberator
effects to the BORROWER as if they had been received
in the corresponding proportion by the others who take
part in the loan.
Whereas, and whenever the contrary is not expressed,
any modification made or received by the Agent will
provide the same effects as if it had been formulated
by all the LENDERS.
17.34 LENDERS Representation. Liability limitation.
The representation faculties that the LENDERS give to
the Agent will be understood as limited to those
actions and measures that specially foreseen in this
contract, were necessary to procure the good end of
the same. In no case the Agent will have the LENDERS
or BORROWERS fiduciary character remaining their
duties and obligations limited to the ones expressly
determined in this contract.
According to these principles and as a matter of
information:
a) The agent will not be responsible with regard to the
other LENDERS for the celebration causes, validity and
contract exigency or other complementary document, or the
veracity or certainty of the declarations contained in the
same or the communications that he receives and neither for
the loan drawn.
b) The agent will not be obliged to take any decision or
to make any investigation regarding the fulfilment of the
contract. Only when he has real knowledge or had received a
communication from any of the LENDERS or BORROWER about the
non fulfilment of the contract or something that could
cause the resolution of the same, will notify it to the
other LENDERS.
c) The information duty of the Agent will be understood
as limited to the communications that have been expressly
entrusted in this contract for its normal fulfilment and
development or for its exigency in case of non fulfilment.
d) Each of the LENDERS declares to the Agent to have
achieved with regard to this loan his own and independent
investigation and valuation of the financial situation of
the BORROWER.
17.45 Expenses reimbursement.
The LENDERS will immediately reimburse the Agent
proportionally to its participation in the total of
the loan, all the amounts that being to the BORROWER's
charge, had not been paid by this in a voluntary way
and that represent for the Agent a disbursement due to
any concept and due to the contract he achieves in the
LENDERS common interest with independence of the
favorable or adverse result of the act or measure
that provoked the disbursement.
17.56 Rights of the Agent
The agent in his condition of LENDER, will have the
same rights and faculties of any other creditor entity
due to his participation in the loan.
With independence of the present contract, the Agent
will be able to accept deposits, lend money and, in
general, achieve any other bank operations with the
BORROWER.
17.67 Agent's renounce. Appointment of a new Agent.
The Agent will be able to renounce to said post, by
written notice to the other LENDERS and BORROWER. In
that case, the LENDERS will proceed to appoint, as
majority among them, a new Agent, with the previous
approval of the BORROWER who will not be able to deny
it without a justified cause.
The renounce and appointment will have effect from the
new Agent acceptance date, that will be formalized by
notarial act and will be notified by the same public
feudatory to the BORROWER and to the rest of the
LENDERS.
The new Agent will be invested with the same
obligations and rights of the ceased one in accordance
with the terms of the present contract.
The expenses and taxes derived from the change of
Agent will be on the entity that had renounced to said
post.
17.78 Assignment of its participation by the Agent.
In case the Agent would totally assign his
participation in the loan, he will be obliged to
renounce to said post, without prejudice of continuing
it till the appointment and acceptance of the new
Agent.
EIGHTEENTH.- Mortgage
18.1 Universal patrimonial liability
The BORROWER is responsible for the fulfilment of the
obligations derived from the present contract in the
terms of the article 1911 of the Civil Code.
18.2 Constitution of the Mortgage
In addition of the personal, unlimited and universal
responsibility of the borrower in respect of the
fulfilment of the present contract; a voluntary
mortgage is constituted to guarantee the repayment of
the loan for 42% of the capital, interests over three
years up to a maximum of 14% per year, as well as 15%
over the said capital for delay interests, and 20%
over said capital for expenses and legal fees and 5%
over said capital to cover the expenses incurred by
the lenders on behalf of the borrower with respect to
payments of insurance premiums over the mortgage
property. In this sense Xx. Xxxxxxx Xxxxxxx
Xxxxx in the name and on behalf of mercantile
entity "PLYMOUTH RUBBER EUROPA,
S.A.", constitutes a voluntary
mortgage in favor of CAJA DE AHORROS MUNICIPAL DE
VIGO (CAIXAVIGO), BANCO BILBAO VIZCAYA, S.A. and BANCO
DE COMERCIO, S.A. which they accept, the mortgage is
constituted over the property described herein below
and its extension is expressly agreed by the parties
to be that established in article 109, 110 and 111 of
the Mortgage Act in all its points.
(description of the property)
The mortgaged property guarantees a maximum of
375,000,000 Pesetas.:
The lenders have the following participation in each
of the responsibilities concerning the merger:
CAIXAVIGO 33,334%
BANCO DE BILBAO VIZCAYA 33,333%
BANCO DE COMERCIO 33,333%
NINETEENTH.- Procedure
19.1 Procedure
Notwithstanding the exercise of whichever other legal
action directed to obtain the acknowledgment or
effectiveness of their rights, the Lenders are entitled
to initiate the ordinary executive procedure, the
summary judicial procedure established in article 131 of
the Mortgage Act, the extrajudicial procedure
established in article 129 of the same Act, or any other
legal procedure which may be applicable. The use of any
one out of these procedures will not prevent the
initiation of any of the others as long as the loan is
not totally repaid.
The lenders are entitled to use these judicial actions
either on their own or through the Agent. In case they
decide to do it through the Agent, the lenders hereby
empower the Agent so that in the name and on their
behalf, as well as in its own name and behalf, the Agent
may initiate the General Executive Procedure established
in the Civil Procedures Act, or the summary judicial
procedure of the Mortgage Act, or the extrajudicial
procedure of the Mortgage Act and the Mortgage Ruling.
For the appropriate judicial effects, the parties here
establish the following determinations:
a) The amount for the eventual auction is fixed at
170,000,000 Pesetas.
b) The notifications' address for the borrower is
established at the address of the mortgaged properties.
c) For the effects of article 234 of the Mortgage Ruling
the borrower hereby appoints CAIXAVIGO as mandatory, who
may act through any of the persons it empowers.
d) The lenders may request, for themselves or for any
other person who represents them, the administration and
interim possession of the properties in all cases of
claims, judicial or extrajudicial execution, there
including the cases contemplated by article 117 of the
Mortgage Act, in this case the produce or rents of the
property will be applied to the interests and capital owed,
once the expenses of the Administration have been deducted.
The expense of the Administration shall be determined in
view of the type and produce of the properties and, under
no circumstance, will it be lower than that established in
the Civil Procedures Act for a Testamentary Administrator.
Notwithstanding the preceding the procedure in course shall
continue.
e) In case the lenders decide to initiate the ordinary
executive procedure, it is expressly agreed by the parties,
in respect of what it is established in articles 1.429 and
1.435 of the Civil Procedures Act, that the liquidation to
determine the amount of the claimable debt will be carried
out by the Agent or, in case of individual claims, by each
one of the lenders, who will issue the corresponding
certification showing the balance of the account at the
time of its closing. For the initiation of the executive
action it will suffice to present an authorized copy or a
second copy of the present deed, together with the
certification established in article 1429.6 of the Civil
Procedures Act, as well as providing another certificate
issued by the Agent or the lenders showing the balance
against the borrower. Said certificate will be incorporated
on to a public document in which the Intervening Notary
Public shall, at the request of the lenders, shall give
faith that the balance in the certificate agrees with that
shown in the borrower's account, and that the liquidation
of the debt has been carried out in the manner established
by the parties in the present document.
For the event contemplated by rule 12, of article 131
of the Mortgage Act, which refers to the event that
the third option is declared desert, the borrower
hereby gives his authorization for the auction to be
repeated as many times as the Agent or the lenders so
request. In accordance with what is established in article 234
and corresponding of the Notarial Ruling, the borrower
hereby expressly consents that any second copies of
the present deed requested by the Agent or the
lenders, have an executive character and hereby giving
the Notary Public their authorization to dispense of
any other requisite established to that end. The
parties hereby request the authorization notary that
this be so recorded at the end of the deed.
The borrower hereby undertakes to grant, on its own
expense, should the fault be attributable to the
BORROWER, as many public deeds as be necessary in
order to remedy all faults contained herein, or to
clarify the contents hereof, so that the present deed
may be registered at the Property Registry. The
Borrowers opposition to do this, once requested by the
Agent and within the period of time established by the
latter, will be cause for termination of the present
agreement.
19.2 Extrajudicial executive procedure
In order to comply with what is established in article
242.2 of the Mortgage Ruling, as amended by Royal
Decree 290/1992 of 27th March, the parties hereby
agree to the extrajudical execution of the mortgage,
notwithstanding the creditor right to elect whichever
procedure, out of those legally available, that it
may deem fit.
In order to establish the auction going out price, the
address for notification and the person who is to
grant the corresponding deed of sale of the property
on behalf of the borrower, the parties expressly refer
to what is established under clause 19.1 of the
present deed.
TWENTIETH.- Conservation of the guarantee
The Borrower is obligated to:
i. Maintain/Keep the mortgaged property, carrying out the
necessary acts for its upkeep and conservation so that its
value is not diminished and undertaking to inform the
Agent, within the period of one month, about any
deterioration it may suffer for whichever cause or whatever
may affect its value or of any act which may threaten or
forsake their property rights.
ii. Not to celebrate any lease agreement in which three
monthly rents are pre-paid or the annual rent is lower than
25% of the action price established in clause
19, without the prior consent of the Lenders, as well as to
give the Agent sufficient evidence, every six months, of
the communal expenses, insurance premiums payable with
respect of the mortgaged property as well as any other debt
related to credits which may be preferential to the present
mortgage. The Agent is hereby enabled to pay these debts to
the corresponding creditors and to debit them in the
Borrowers account and claim them from the borrower in
accordance with what is established in
the present Deed, notwithstanding the possibility of
termination as established hereinafter, and being all those
amounts guaranteed by the amounts of the mortgage reserved
for expenses and legal fees in clause 18.
iii. To provide the lenders, through the Agent, the
annual accountancy statements required by the legislation
in force and whichever data is necessary for them to
ascertain the financial state of the borrower and its
economic situation, for the duration of the present
contract and within the 15 days following their approval
and in any case no later than July 15, each year, they
will also provide the Agent, every six months, with their
financial statements.
iv. To maintain the property insured, evidencing it 120
days in advance, for the duration of the present contract
under the terms which the Agent may establish with regards
to the name of the Insurance Company as well as the
contents of the policy, hereby agreeing that the Lenders be
beneficiary of the insurance at the borrowers risk and
expense, the Borrower hereby irrevocably and formally
assigns to the Lenders the proceeds of any indemnity which,
in consideration of the insured capital or in any other
concept, the Insurance Company may be liable to pay. The
Agent may carry out, with respect of the Insurance Company,
the necessary acts, for which the Borrower hereby grants
the Agent the necessary powers and undertakes not to revoke
those as long as the loan herein granted is not totally
repaid.
In addition to the general terms of the above mentioned
insurance policy, and the appointment of the Lenders as
beneficiary to the same in proportion to their respective
participations in the loan, the following clauses must be
established in the corresponding policies:
1. The insured party may not rescind the insurance policy
or substitute, reduce or modify the essential terms thereof
without the prior consent of the majority of the Lenders.
2. If the resolution, substitution, modification,
reduction of the terms regulating the insurance be due to
the initiative of the Insurance Company, the latter shall
have to inform the Lenders by means of a certified letter,
as soon as possible, at least within one month, and in any
case prior in three months to the expiration of the policy.
3. The insured party, in case of accidents which gives
rise to insurance claim, is obliged to fulfil the
obligations the assurance policy establishes and specially
to justify its quantity, conceding the Lenders the right to
carry out , if they deem convenient, all the acts
concerning the accident, practicing any necessary
diligence.
The amount of these indemnities and of any other
indemnities which may be due upon expropriation of the
property may be applied, at the Agent's decision to the
payment of the debts arising from this contract, even is
they are not yet due.
In order to control the state of conservation of the
properties and the correct compliance of its obligations
by the borrower, the Agent shall be entitled to carry out
as many inspections as it may deem convenient, and the
Borrower undertakes to allow access to the mortgaged
property to the person whom the Agent may appoint.
TWENTY FIRST.- Bank Guarantee
The Borrower provides the Lender with three bank
guarantees (annexed to the present contract) for an
amount of twenty six million six hundred and sixty six
thousand six hundred and sixty six (Pesetas.- 26,666,666)
granted by ABN-AMROBANK, guaranteeing
to each of the lenders the amount of their participation
in the operation, for five years, renewable for a
period of other five years, being the non renew of this
period termination cause of this agreement, which are
included as Annex I of this agreement .
TWENTY SECOND.- Calculation of the dates and periods.
To all effects foreseen in this contract it will be
understood for:
"DAY" or "NATURAL DAY".- All of the days of the Gregorian
schedule.
"WORKING DAY".- Any day of the week in which transactions
at the Inter-Bank Market at Madrid can be made except
Saturdays as to the effect of this contract these are not
considered working days.
"WEEK" or "SEVEN DAYS".- The period comprized between a day
of a specific week and the same denomination of the next
week in the schedule, both inclusive.
"FORTHNIGHT" or "FIFTEEN DAYS".- The period comprized
between a day of a specific week and the one of the same
denomination of the second consecutive week that follows in
the schedule, both inclusive.
"MONTH, QUARTER (or THREE MONTHS), SEMESTER (or SIX MONTHS)
and YEAR (or TWELVE MONTHS)." - The period comprized between
any specific day and the day of the same number of the
first month, of the third month, of the sixth month or of
the twelfth consecutive month that follows as it is
appropriate, in the Gregorian schedule, both inclusive; if
this would not exist the period of time will be understood
as finished the last day of the month that corresponds.
TWENTY THIRD - Communications between the parties.
The communications between the BORROWER, the LENDERS and
the Agent that did not have foreseen in this contract a
special form will be made using any way that allows to
leave constancy of the deliver and reception.
The communications will be duly understood as made when
they are performed through the deliver, with the necessary
priority in each case, e.g. a telex or a telefax to the
numbers listed below. The telex or telefax emission receipt
in which appears its reception in said numbers will be an
irrefutable proof of the communications, without prejudice
of a later communication by a letter signed by powered
personal with regard to the communications made, or an
acknowledge of receipt is made in same way with regard to
the ones received.
The communications of general nature regarding this
contract and the ones referred to the same that may produce
the BORROWER will be managed in any case by the Agent who
will force the LENDERS to follow it.
For any communication or notification the social addresses
and telefax numbers of the contractor entities are the
following:
PLYMOUTH RUBBER EUROPA, S.A.
Ctra. Xxxxxxx-Xxxxxxx, xx. 1,5
Xxxxxxx (Pontevedra)
Telephone: 986/ 330558 - 330562 - 330258.
Telefax: 986/ 331713.
CAJA DE AHORROS MUNICIPAL DE VIGO
Avda. Xxxxxx Xxxxxx, 1
36201 VIGO
Telephone: 986 - 431133.
Telefax: 986 - 430190.
BANCO BILBAO VIZCAYA, S.A.
Xxxxx xxx Xxxxxxxxxxxx 0.
36400 Porrino (Pontevedra)
Telephone: 966 - 330804.
Telefax: 986 - 330616.
BANCO DE COMERCIO, S.A.
Xxxxx xx Xxxxxxxxxx 00-00.
36201 VIGO (Pontevedra)
Telephone: 986 - 435522 - 226305.
Telefax: 986 - 226306.
TWENTY FOURTH.- Compensation of balances
The Agent and the Lenders are hereby expressly and
irrevocably enabled by the Borrower to apply to the
payment of any amounts owed in relation with this contract,
the credits which may exist in favor of the Borrower in
the hands of the Agent and of the rest of the Lenders in
accounts, savings accounts, or accounts of any other kind
and consequently to carry out the appropriate credits and
debits, and whichever other sums or credits which may
belong to the borrower and be in the hands of the Agent or
the other Lenders; or any amounts which the Lenders may owe
the Borrower, and even by selling the shares or whichever
other deposit which the Borrower may have at the main
office or at any branch of the Agent or the Lenders.
If the currency of the deposits were to be Pesetas or any
other currency to which loan refers, the Agent shall
convert that to the currency in which the loan is
established at the official vendor rate of the date upon
which the operation is carried out, and charging for the
conversion the appropriate commissions.
TWENTY FIFTH.- Processal submission and legal regime
The contracting parties with express renounce to the law-
code could correspond, they submit for all incidence
concerning this document to the Courts and Tribunals that
exercise jurisdiction in Vigo.
TWENTY SIXTH.- Joint Guarantee
The Lenders, in the way they are represented, accept, by this
act, the joint guarantee, constituted, in compliance of the
obligations assumed by the Borrower in this Public Deed, by
PLYMOUTH RUBBER COMPANY, INC. a U.S. Corporation
incorporated under the Laws of the Commonwealth of
Massachusetts, domiciled in Canton, Massachusetts, 000
Xxxxxx Xxxxxx XX 00000, and duly registered at the
Commonwealth of Massachusetts (USA).
The guarantee is extended to any and all the obligations of the borrower
contemplated in the present agreement.
The guarantee shall remain in force for as long as the obligations it
guarantees have not been totally canceled.
The guarantors hereby expressly accept, in all their effects, all the
extensions of the payment periods or all other payment facilities
which the lending institutions may grant to the borrower.
ANNEX I - Bank Guarantee
The Bank ABN AMRO BANK, N.V. Spanish branch, with
corporate address in Bilbao at Xxxxx xx Xxxxxx 0, 6th floor
and holder of Fiscal Identity Code Number A-0031021-1
and in its name and on its behalf Xx.
Xxxx Xxxxx Xxxxxx and Xxx. Xxxxxxx Xxxx Xxxxxxxx, with
sufficient powers to bind the bank to this act, as
evidenced in the Public Deed granting said powers, dated
26.9.90 and 27.9.95 and granted before the Notary Public
Xxx. Xxxxxxx Xxxxxxxxx Xxxxx of Amsterdam and Xx. Xxxxx Xxxxx
Xxxxxx de Mijas of Madrid, declared sufficient by the Legal
Counsel of the State on in Vizcaya on Arpil 6, 1992 and May 28,
1996 registry numbers 182/92 and 422/96, declares that said
banking entity
GUARANTEES
In a manner as ample as legally possible, and hereby
renouncing all privileges of order, excuse and division,
the obligations of:
PLYMOUTH RUBBER EUROPA, S.A.
Before Caja Municipal de Ahorros de Vigo
For payments related to the loan for an amount of Ptas.- 250.000.000
(TWO HUNDRED AND FIFTY MILLION) granted to PLYMOUTH RUBBER
EUROPA, S.A. by Caja de Ahorros Municipal de Vigo, Banco de
Bilbao Vizcaya y Banco de Comercio, as Lenders, each for
one third of the total amount, as formalized on
11.04.97; and thus guarantees before Caja Municipal de
Ahorros de Vigo, and up the maximum limit, for all concepts
(capital, interests, delay interests and other expenses),
of Ptas.- 26.666.668 (TWENTY SIX MILLION SIX HUNDRED AND
SIXTY SIX THOUSAND SIX HUNDRED AND SIXTY EIGHT).
The present guarantee shall be in force for a period of
five years as from the present date, and should be renewed
in successive periods till the total expiration of the loan
on 11th April 2007, as in case it would not be renewed,
the beneficiary, could proceed to its execution within 30
following days to the valid period mentioned, and all in
case the loan is updated as far as its payment obligations
are concerned.
The Bank ABN AMRO BANK, N.V. Spanish branch declares that it
knows and assumes all general and particular conditions of
the loan policy herein referred to, being this document of
guarantee an annex and part thereof.
The Bank ABN AMRO BANK, N.V. Spanish branch shall effectively
pay, in one or several payments, the amount corresponding to
the present guarantee, up to its maximum amount, upon receipt
of a mere request to do so by the Caja de Ahorros Municipal
de Vigo, without no need for a prior notification or
consent by the guaranteed party.
The present guarantee has been registered at the Guarantee
Registry kept by this banking entity under number
00438/9704
In Bilbao, on 11th April 1.997.
The Bank ABN AMRO BANK, N.V. Spanish branch, with address in
Bilbao at Xxxxx xx Xxxxxx xxxxxx 0, 6th floor and holder
of Fiscal Identity Code Number A-0031021-I and in its name
and on its behalf Mr. Xxxxx Xxxxx Xxxxxx and Xxx. Xxxxxxx Xxxx
Xxxxxxxx, with sufficient powers to bind the bank to this act,
as evidenced in the Public Deed granting said powers, dated
26,9.90 ans 27.9.95 and granted before the Notary Public Xxx.
Xxxxxxx Xxxxxxxxx Xxxx of Amsterdam and Xx. Xxxxx Xxxxx Xxxxxx de
Mijas of Madrid, declared sufficient by the Legal Counsel of
the State on in Vizcaya on April 6, 1992 and May 28, 1996 registry
numbers 182/92 and 422/96, declares that said banking entity
GUARANTEES
In a manner as ample as legally possible, and hereby
renouncing all privileges of order, excuse and division,
the obligations of:
PLYMOUTH RUBBER EUROPA, S.A.,
Before Banco de Bilbao Vizcaya, S.A.
For payments related to the loan for an amount of Ptas.- 250.000.000
(TWO HUNDRED AND FIFTY MILLION) granted to PLYMOUTH RUBBER
EUROPA, S.A. by Caja de Ahorros Municipal de Vigo, Banco de
Bilbao Vizcaya y Banco de Comercio, as Lenders, each for
one third of the total amount, as formalized on
11.04.97; and thus guarantees before Banco de Bilbao, and up
the maximum limit, for all concepts (capital, interests,
delay interests and other expenses), of Ptas.- 26.666.666
(TWENTY SIX MILLION SIX HUNDRED AND SIXTY SIX THOUSAND
SIX HUNDRED AND SIXTY SIX).
The present guarantee shall be in force for a period of
five years as from the present date, and should be renewed
in successive periods till the total expiration of the loan
on 11th April 2007, as in case it would not be renewed,
the beneficiary, could proceed to its execution within 30
following days to the valid period mentioned, and all in
case the loan is updated as far as its payment obligations
are concerned.
The Bank ABN AMRO BANK, N.V. Spanish branch declares that it
knows and assumes all general and particular conditions of
the loan policy herein referred to, being this document of guarantee
an annex and part thereof.
The Bank ABN AMRO BANK, N.V. Spanish branch shall effectively
pay, in one or several payments, the amount corresponding to the
present guarantee, up to its maximum amount, upon receipt
of a mere request to do so by the Caja de Ahorros Municipal
de Vigo, without no need for a prior notification or
consent by the guaranteed party.
The present guarantee has been registered at the Guarantee
Registry kept by this banking entity under number
00436/9704
In Bilbao, on 11th April 1997.
The Bank ABN AMRO BANK, N.V. Spanish branch, with address in
Bilbao at Xxxxx xx Xxxxxx xxxxxx 0, 6th and holder of Fiscal
Identity Code Number A-0031021-I and in its name and on its
behalf Xx. Xxxx Xxxxx Xxxxxx and Xxx. Xxxxxxx Xxxx Xxxxxxxx,
with sufficient powers to bind the bank to this act, as evidenced
in the Public Deed granting said powers, dated 26.9.90 and 27.9.95
and granted before the Notary Public Xxx. Xxxxxxx Xxxxxxxxx Xxxxx,
of Amsterdam and Xx. Xxxxx Xxxxx Xxxxxx de Mijas of Madrid, declared
sufficient by the Legal Counsel of the State on in Vizcaya on April 6,
1992 and May 28, 1996 registry numbers 182/92 and 422/96, declares
that said banking entity
GUARANTEES
In a manner as ample as legally possible, and hereby
renouncing all privileges of order, excuse and division,
the obligations of:
PLYMOUTH RUBBER EUROPA, S.A.
Before Banco de Comercio, S.A.
For payments related to the loan for an amount of Ptas.-
250.000.000 (TWO HUNDRED AND FIFTY MILLION) granted to
PLYMOUTH RUBBER EUROPA, S.A. by Caja de Ahorros Municipal de Vigo,
Banco de Bilbao Vizcaya y Banco de Comercio, as Lenders, each for
one third of the total amount, as formalized on 11.04.97; and thus
guarantees before Banco de Comercio, S.A., and up the maximum limit, for
all concepts (capital, interests, delay interests and other
expenses), of Ptas.- 26.666.666 (TWENTY SIX MILLION SIX
HUNDRED AND SIXTY SIX THOUSAND SIX HUNDRED AND SIXTY
SIX).
The present guarantee shall be in force for a period of
five years as from the present date, and should be renewed
in successive periods till the total expiration of the loan
on 11th April 2007, as in case it would not be renewed,
the beneficiary, could proceed to its execution within 30
following days to the valid period mentioned, and all in
case the loan is updated as far as its payment obligations
are concerned.
The Bank ABN AMRO BANK, N.V. Spanish branch declares that it
knows and assumes all general and particular conditions of the loan
policy herein referred to, being this document of guarantee
an annex and part thereof.
The Bank ABN AMRO BANK, N.V. Spanish branch shall effectively
pay, in one or several payments, the amount corresponding to the
present guarantee, up to its maximum amount, upon receipt
of a mere request to do so by the Banco de Comercio, S.A.,
without no need for a prior notification or consent by the
guaranteed party.
The present guarantee has been registered at the Guarantee
Registry kept by this banking entity under number 00437/9704
In Bilbao, on 11th April 1997.
