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Exhibit 4
Translated from the original in French
LOAN AGREEMENT
Between the Undersigned:
The BANQUE TARNEAUD, SA, with a capital amounting to 21,172,976 Euros,
headquartered at 2 and 0, xxx Xxxxxx, 00000 Limoges cedex, Corporate and Trade
Register No. 000-000-000 LIMOGES; Represented by Acting as
The BANQUE NATIONALE DE PARIS, with a capital of 873,955,200 Euros,
headquartered at 00 xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, Corporate and Trade
Register No. 000-000-000 PARIS; Represented by Xx. Xxxxx Xxxxxxx; Acting in his
capacity of Branch Director of the Banque Nationale de Paris in Dordogne;
Hereafter referred to as "the Banks";
ON THE ONE HAND;
And the SA ESCAPADE Company, with a capital of FF 250,000, Corporate and Trade
Register No. 000-000-000 Perigueux, headquartered in Le Petit Gue, 24800
Nantheuil de Thiviers, represented by its CEO, Xx. Xxxxxxx Xxxxxxx;
Hereafter referred to as "the Client," without affecting the joint and several
liability of the borrowers should there be several of them;
ON THE OTHER HAND;
THE FOLLOWING HAS BEEN CONVENED AND AGREED UPON:
The Banks agree to lend to the Client, without any solidarity between them, a
total amount of FF 14,800,000, to assist the Client in financing the acquisition
of 49% of the shares of SA LA THIBERIENNE ETS FARGEOT ET CIE.
SPECIFICATIONS OF THE LOANS GRANTED BY THE BANQUE TARNEAUD
FIRST PART:
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Amount: FF 3,700,000
Term: Seven (7) years
Starting Date: 5 Jan 2000
Capital Reimbursement Modalities: 27 quarterly installments of
FF 132,200 and one quarterly
installment of FF 130,600
First Due Date: 5 Apr 2000
Last Due Date: 5 Jan 2007
Administrative Costs: FF 18,090 all taxes included,
including FF 3,090 in VAT
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The Client shall execute promissory notes at maximum 90 days, payable to the
Banque Tarneaud, domiciled at the Banque Tarneaud Branch where the Client has
his account. These notes shall be renewable for the same amount and for the
duration of the credit opened, taking into account the capital amortization
indicated above.
The amount of the note shall be credited to the account opened in the Client's
name.
At each due date, the note due shall be charged to said account and shall be
renewed.
Interest rate: The notes shall be cashed at three months at the EURIBOR rate (or
any other equivalent index substituted for it), plus 1% per year (advance agio).
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By way of indication, the EURIBOR rate at three months on 9/21/1999 was 2.68%
per year.
Assuming that the index would cease to be published or would disappear before
the entire reimbursement of the Credit, a replacement index shall be
substituted, provided it has been anticipated. The lack of a replacement index
shall in no way authorize the Client to delay his payment of the interests, and
said interests must be settled based on the most recent applicable rate and
shall be revised at the latest on the last reimbursement due date and
retroactively once the replacement index is known.
COMMITMENT FEE
Additionally, a 0.20% per year Commitment Fee shall be levied.
This Fee shall be subtracted and collected at the beginning of each quarter and
in advance from the credit amount authorized for such period. The amounts levied
shall be entirely and definitely acquired, even in case of prepayment during the
quarter.
GLOBAL EFFECTIVE RATE
It must be noted that the global effective rate of aforementioned credit amounts
to 4.02% per year, including interests, commissions and expenses linked to the
Contract, taking into account the three-month EURIBOR rate on 09/21/1999. The
usury threshold at the date of execution of the Agreement is 6.85% a year.
SECOND PART
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Amount: FF 3,700,000
Term: Seven years
Deductible Amount: None
Number of Reimbursements: 28
Frequency: Quarterly
Interest rate: 5.50% per year
Installment Amount: FF 160,103.95
Starting Date: 5 Jan 2000
First Due Date: 5 Apr 2000
Last Due Date: 5 Jan 2007
Administrative Expenses: FF 18,090 all taxes included,
including FF 3,090 in VAT
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The Client agrees to pay the reimbursements indicated above to the Banque
Tarneaud. Each payment shall include, not only the reimbursement of a fraction
of the capital, but also the interests on the remaining capital due for the
period according to the amortization schedule, a copy of which shall be given to
the Client.
GLOBAL EFFECTIVE RATE
It must be noted that the global effective rate of aforementioned credit amounts
to 5.61% per year, including interests, commissions and expenses linked to the
Agreement. The usury threshold at the date of execution of the Agreement is
7.53% a year.
SPECIFICATIONS OF THE LOANS GRANTED BY THE BANQUE NATIONALE DE PARIS
FIRST PART:
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Amount: FF 3,700,000
Term: Seven (7) years
Starting Date: 5 Jan 2000
Capital Reimbursement Modalities: 27 quarterly installments of
FF 132,200 and one quarterly
installment of FF 130,600
First Due Date: 5 Apr 2000
Last Due Date: 5 Jan 2007
Administrative Costs: FF 15,075 all taxes included,
including FF 2,575 in VAT
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The Client shall execute promissory notes at maximum 90 days, payable to the
Banque Nationale de Paris domiciled at the branch of the Banque Nationale de
Paris where the Client has his account. These notes shall be renewable for the
same amount and for the duration of the credit opened, taking into account the
capital amortization indicated above.
The amount of the note shall be credited to the account opened in the Client's
name.
At each due date, the note due shall be charged to said account and shall be
renewed.
Interest rate: The notes shall be cashed at three months at the EURIBOR rate (or
any other equivalent index substituted for it), plus 1% per year (advance agio).
By way of indication, the EURIBOR rate at three months on 9/21/1999 was 2.68%
per year.
Assuming that the index would cease to be published or would disappear before
the entire reimbursement of the Credit, a replacement index shall be
substituted, provided it has been anticipated. The lack of a replacement index
shall in no way authorize the Client to delay his payment of the interests, and
said interests must be settled based on the most recent applicable rate and
shall be revised at the latest on the last reimbursement due date and
retroactively once the replacement index is known.
COMMITMENT FEE
Additionally, a 0.20% per year Commitment Fee shall be levied.
This Fee shall be subtracted and collected at the beginning of each quarter and
in advance from the credit amount authorized for such period. The amounts levied
shall be entirely and definitely acquired, even in case of prepayment during the
quarter.
GLOBAL EFFECTIVE RATE
It must be noted that the global effective rate of aforementioned credit amounts
to 4.01% per year, including interests, commissions and expenses linked to the
Contract, taking into account the three-month EURIBOR rate on 09/21/1999. The
usury threshold at the date of execution of the Agreement is 6.85% a year.
SECOND PART
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Amount: FF 3,700,000
Term: Seven years
Deductible Amount: None
Number of Reimbursements: 28
Frequency: Quarterly
Interest rate: 5.50% per year
Installment Amount: FF 160,103.95
Starting Date: 5 Jan 2000
First Due Date: 5 Apr 2000
Last Due Date: 5 Jan 2007
Administrative Expenses: FF 15,075 all taxes included,
including FF 2,575 in VAT
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The Client agrees to pay the reimbursements indicated above to the Banque
Nationale de Paris. Each payment shall include, not only the reimbursement of a
fraction of the capital, but also the interests on the remaining capital due for
the period according to the amortization schedule, a copy of which shall be
given to the Client.
GLOBAL EFFECTIVE RATE
It must be noted that the global effective rate of aforementioned credit amounts
to 5.630% per year, including interests, commissions and expenses linked to the
Agreement. The usury threshold at the date of execution of the Agreement is
7.53% a year.
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GENERAL LENDING CONDITIONS
The Client hereby irrevocably authorizes the Banks to withdraw the necessary
funds from its account on each reimbursement due date without preliminary notice
or the need to draw up a debit note.
Any extension of one or several due dates possibly granted by the Banks must be
recorded in a rider to this Agreement. Interest on arrears shall be demanded on
any amount that is still unpaid on the due date and has been the object of a
rider, computed at the credit rate plus three percent per year and charged on
the entire unpaid amount.
UNPAID AMOUNTS - LATE PENALTY
In case of non-payment of one of the installments stipulated above, independent
from the acceleration of maturity clause mentioned hereafter, an additional
three percent shall be added to the interest rate to be levied on the
outstanding principal amount as of the starting date of the unpaid installments.
This provision cannot detract from the payability and consequently count as an
agreement to delay the settlement.
To these late penalties shall be added the tax on services performed, and, if
applicable, all other taxes possibly due in the future as well as all
commissions or increases generally decided upon by the Conseil national du
credit or any other body with regulative jurisdiction.
In case of non-payment of one single installment, an event of default shall
rightfully be declared and the total amount of all future installments shall be
immediately payable.
EXCLUSION OF THE CLIENT'S CURRENT ACCOUNT
The transactions resulting from the execution of this loan are excluded from any
current account(s) the Client has or could have with the Banks. The account kept
at each Bank in view of keeping track of the transactions carried out at the
Bank to implement the loan shall be a simple accounting instrument and shall
have no effect on the current account.
DESTINATION OF FUNDS
The Banks may, at any time, request all justifications necessary to control the
use of the funds but do not have to verify their application.
Should the Banks discover that the funds have been used for a purpose other than
the one mentioned above, they may, but are not required to, end the loan and
demand the reimbursement of the borrowed funds.
ACCELERATION OF MATURITY
All sums still due in principal, interests and accessories shall be immediately
and rightfully due without any preliminary notice:
- In case of bankruptcy, insolvency, legal redress or liquidation by order of
court, cessation of business, Client's failure to pay, death of the insured
person (when applicable). In one of the above cases, all outstanding
installments due shall be rightfully expected to be prepaid.
The Client must warn the Banks of his intention to effect a prepayment at least
ten days before the payment, indicating the amount.
For any prepayment, the Banks shall charge a compensation equal to 1.5% of the
prepaid capital.
For any modification of the rate or term of this credit requested by the Client,
the Banks shall charge an indemnity as provided for in the clause entitled
"Possibility of early release," as well as the administrative expenses according
to the rates listed in their General Conditions.
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REQUIRED COMMUNICATIONS TO THE BANKS
As long as the Client is a debtor pursuant to this Agreement, he must:
1. Communicate to the Banks within a 15-day term all facts that are
susceptible to seriously affect the importance or the value of his assets
or to considerably increase the breadth of his commitments;
2. On December 31 of each year, deliver to the Banks a statement certifying
that he is up-to-date in his payments of direct or indirect taxation and
the state and city taxes payable by him, as well as of all social charges.
If necessary and upon simple request, the Banks should be able to receive
confirmation of these payments of said taxes and charges from the
collection services and Social Security office.
NON-RENEWAL CLAUSE
The guarantees under the provisions of this Agreement are granted and accepted
without any renewal but are formally subject to all rights and actions of the
Banks with regard to the Client.
They shall in no way prejudice these rights and actions and cannot affect the
nature and extent of all commitments and all real or personal guarantees that
the Client or any other third party may take out or deliver to the Banks.
SWITCHING TO SINGLE CURRENCY
As needed and in conformance with the general principles of monetary law,
monetary debts denominated and/or payable in the currency of a country that is a
member of the European Community (National Monetary Unit) pursuant to this
Agreement shall rightfully be considered as denominated and/or payable in
European Single Currency when the National Monetary Unit shall have ceased to
exist or, more generally, shall have been replaced by the European Single
Currency according to the applicable community and/or national regulations.
FINANCIAL INSTRUMENT ACCOUNT COLLATERAL
A financial instrument account collateral equal to FF 14,800,000 must accompany
this credit.
- 1980 shares issued by SA LA THIBERIENNE ETS FARGEOT ET CIE., with a capital
of FF 2,000,000, Corporate and Trade Register No. 000-000-000 Perigueux,
headquartered at Le Petit Gue 24800 Thiviers.
This collateral shall be placed on record by an act under private writing signed
separately from this Contract.
In case it is not possible to formalize this guarantee under the conditions
provided for, the Banks may demand the accelerated redemption of all amounts due
under this loan.
ASSIGNMENT OF A DEATH AND DISABILITY INSURANCE
Xx. Xxxxxxx XXXXXXX agrees to assign to the benefit of the Banks a special death
and disability insurance for ten million Francs (five million Francs per Bank)
that he will take out with an insurance company of his choice, it being
understood that the assigned amount may not be less than 67.5% of the
outstanding credit during the entire term of the loan.
The Banks must receive a rider to this policy attesting this assignment.
In case it is not possible to formalize this assignment under the conditions
provided for, the Banks may demand the accelerated redemption of all amounts due
under this loan.
SPECIFIC CLAUSES
- The agreement of merger-absorption of SA LA THIBERIENNE ETS. FARGEOT ET CIE
by SA XXXXXX XXXXXXX at the latest on 06/30/2000;
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- A promise to place the SA XXXXXX XXXXXXX shares as collateral after the
merger-absorption of SA LA THIBERIENNE ETS FARGEOT ET CIE;
- SA ESCAPADE is authorized to distribute dividends in case of partial use of
the loan and subject to the respect of the financial covenants as defined
hereafter:
- The net consolidated earnings must be at least FF 3,000,000
- The distribution must be less than 25% of the net earnings
EXPENSES
The Client recognizes that any amendment of this credit that would require a
rider shall force the Banks to levy administrative charges according to the
rates that are listed in their General Conditions and are valid at the time the
rider is being drawn up.
The Client agrees to pay all charges and rights linked to this document as well
as all possible charges and rights linked to its execution.
The Agreement is governed by the laws of France.
The competent courts of Limoges have jurisdiction with respect to the execution
of this Agreement.
Drawn up in Limoges on 21 Jan 2000, in as many copies as there are Parties.
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THE CLIENT THE BANKS
"Good for FF 14,800,000 (in numbers and in letters)
and good for agreement according to the preceding [Illegible signature]
terms."
Signature and commercial stamp. Xxxxx XXXXXXX
[Same text as above, but handwritten]
[Illegible signature]
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