EXHIBIT 10.8
AMOUNT: EUR 10,000,000
EXPIRATION: SEPTEMBER 1, 2006
NUMBER: 2003/FO134
COLLATERAL LOAN AGREEMENT
This Policy is executed in Madrid on March 6, 2003, with the intervention of the
Notary Public of Madrid ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, being expressly requested by
the parties.
OF THE ONE PART, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, with National Identity Card
number 799.467-X and MR. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DE ▇▇▇▇▇ ▇▇▇▇▇▇ with National Identity
Card number 7.227.464-J, on behalf of FORTIS BANK S.A., SUCURSAL EN ESPANA
(hereinafter referred to as the "Bank"), with registered office in Madrid at
Calle ▇▇▇▇ ▇▇▇▇▇▇ y Gasset, 29-6 and Tax Identification Number A-0021127-F, duly
empowered to enter into contracts pursuant to the power of attorney deed
executed in their favor on June 7, 2001 before the Notary Public of Brussels,
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and on file in the Mercantile Register of Madrid in
Volume 10,509, Book 9,039, Folio 205, Section 3, Page 52996, Entry 61, and
OF THE OTHER PART, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ DEL BARRIO ▇▇▇▇▇, with National Identity
Card number 51.343.948-J, on behalf of "CARRIERHOUSE, S.A." (hereinafter
referred to as the "Borrower"), with registered office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) and Tax Identification Number A-82232448, on file in
the Mercantile Register of Madrid in Volume 13,891, folio 81, Page M-227370,
Entry 1, who states that he is duly empowered to enter into contracts by virtue
of the certificate issued by the Borrower's Board of Directors dated January 23,
2003.
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, with National Identity Card number
51.356.303-V, on behalf of "ABENGOA, S.A." with Tax Identification Number
A-41002288 (hereinafter referred to as the "SURETY" ). Such company has its
registered offices in Seville, Avda. Buhaira number 2, and was incorporated by
the deed executed by the Notary Public of Seville ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ on
January 4, 1941. He states that he is duly empowered to enter into contract by
virtue of the special power of attorney deed executed before the Notary Public
of Seville ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on March 3, 2003 and under his protocol
number 393.
RECITALS
Whereas the Borrower, CARRIERHOUSE, S.A., has requested a Loan from FORTIS BANK,
S.A. SUCURSAL EN ESPANA in the amount of TEN MILLION EUROS (EUR 10,000,000), in
order to finance the partial acquisition of its fixed assets, and which is
granted by the Bank subject to the following
CLAUSES
1. LOAN AMOUNT
The Bank hereby grants the Borrower, which accepts, a loan in the amount
of TEN MILLION EUROS (EUR 10,000,000), delivered by the former to the
latter in
This agreement comprises of 10 pages, numbered 1 through
10, all of which are signed and stamped by the
intervening NOTARY.
this act by crediting the Borrower's checking account number
0167-0216-49-2054011001 open with the Bank. The Borrower hereby
acknowledges the receipt of such amount to its entire satisfaction.
The drawdown made against this Loan shall be allocated to its limit toward
the settlement of the debit balance pending repayment to the Bank by
CARRIERHOUSE, S.A., by virtue of the CREDIT FACILITY granted to a maximum
limit of 13,522,772.35 Euros under the Bank order number 2002/F123 and
which was executed by the parties with the intervention of the Notary
Public of Madrid ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Baudin on MAY 16, 2002. As of the date
of execution of this Agreement, such debit balance amounts to THIRTEEN
MILLION FOUR HUNDRED AND NINETY THOUSAND THREE HUNDRED AND NINETY SIX
EUROS AND SIXTY SIX CENTS (EUR 13,490,396.66) plus any interest that may
have accrued since the last settlement, and which the Borrower hereby
recognizes as owed to the Bank.
2. TERM AND REPAYMENT
2.1 This Agreement, that is to take effect on the date hereof, shall be
valid through SEPTEMBER 1, TWO THOUSAND AND SIX (2006) (hereinafter
referred to as the "Final Expiration" date), without prejudice to
possible termination or cancellation referred to herein.
2.2 The principal of this loan shall be repaid as from APRIL 1, 2003 in
FORTY TWO (42) CONSECUTIVE MONTHLY INSTALLMENTS OF TWO HUNDRED AND
SEVEN THOUSAND THREE HUNDRED AND SEVENTEEN EUROS AND SEVEN CENTS
(EUR 207,317.07) EACH, with the exception of the last installment
that shall be ONE MILLION FIVE HUNDRED THOUSAND EUROS AND THIRTEEN
CENTS (EUR 1,500,000.13). These shall be paid on each of the
following dates, whereby the Borrower is obliged to credit the Bank
on such date with the quantities indicated as principal, in
accordance with the payment schedule set forth below:
TOTAL
AMOUNT OF INSTALLMENT CAPITAL
REPAYMENT DATE REPAYMENT INTEREST FIRST AMOUNT FIRST PENDING
INSTALLMENT NO. DAY 1 OF: (*) AMOUNT YEAR YEAR REPAYMENT
-----------------------------------------------------------------------------------------------------
1 April 2003 207,317.07 26,137.22 233,454.29 9,792,682.93
2 May 2003 207,317.07 29,533.10 236,850.17 9,585,365.86
3 June 2003 207,317.07 29,871.46 237,188.53 9,378,048.79
4 July 2003 207,317.07 28,282.63 235,599.70 9,170,731.72
5 August 2003 207,317.07 28,579.31 235,896.38 8,963,414.65
6 September 2003 207,317.07 27,933.24 235,250.31 8,756,097.58
7 October 2003 207,317.07 26,406.93 233,724.00 8,548,780.51
8 November 2003 207,317.07 26,641.09 233,958.16 8,341,463.44
9 December 2003 207,317.07 25,156.46 232,473.53 8,143,146.37
10 January 2004 207,317.07 25,348.94 232,666.01 7,926,829.30
11 February 2004 207,317.07 24,702.86 232,019.93 7,719,512.23
12 March 2004 207,317.07 22,504.74 229,821.81 7,512,195.16
13 April 2004 207,317.07 7,304,878.09
14 May 2004 207,317.07 7,097,561.02
15 June 2004 207,317.07 6,890,243.95
16 July 2004 207,317.07 6,682,926.88
17 August 2004 207,317.07 6,475,609.81
18 September 2004 207,317.07 6,268,292.74
19 October 2004 207,317.07 6,060,975.67
20 November 2004 207,317.07 5,853,658.60
21 December 2004 207,317.07 5,646,341.53
22 January 2005 207,317.07 5,439,024.46
23 February 2005 207,317.07 5,231,707.39
24 March 2005 207,317.07 5,024,390.32
25 April 2005 207,317.07 4,817,073.25
26 May 2005 207,317.07 4,609,756.18
27 June 2005 207,317.07 4,402,439.11
28 July 2005 207,317.07 4,195,122.04
29 August 2005 207,317.07 3,987,804.97
30 September 2005 207,317.07 3,780,487.90
31 October 2005 207,317.07 3,573,170.83
32 November 2005 207,317.07 3,365,853.76
33 December 2005 207,317.07 3,158,536.69
34 January 2006 207,317.07 2,951,219.62
35 February 2006 207,317.07 2,743,902.55
36 March 2006 207,317.07 2,536,585.48
37 April 2006 207,317.07 2,329,268.41
38 May 2006 207,317.07 2,121,951.34
39 June 2006 207,317.07 1,914,634.27
40 July 2006 207,317.07 1,707,317.20
41 August 2006 207,317.07 1,500,000.13
42 September 2006 1,500,000.13 0
With the exception of the first year, these installments are comprised solely of
capital. The interest shall accrue and be paid as set forth in Clause 3 below.
(*) or the immediately subsequent business day.
3. INTEREST:
3.1 The Loan shall accrue interest in the Bank's favor on the amount
pending repayment at any time, starting on the date of this
agreement and until the sums owed by the Borrower are effectively
returned to the Bank in accordance with the contents of Clause 2.
Such interest shall accrue daily on the basis of a 360-day year, in
accordance with the following formula:
INTEREST = AMOUNT PENDING NOMINAL INTEREST DAYS OF THE
REPAYMENT X (%) X SETTLEMENT PERIOD
---------------------------------------------------------------------
360 X 100
3.2 In order to determine the interest rate applicable at all times,
this Loan is deemed to be divided into "Interest Periods" with
respective durations of one year each, and each successive period
shall commence the day after the conclusion of the preceding one. As
an exception, the last Interest Period shall end on the date of the
Loan's Final Expiration or early cancellation.
Such interest shall be settled and paid monthly by the Borrower to
the Bank on the same dates envisaged for repayment of the capital,
which are set forth in Clause 2 above.
It is hereby established that for the first Interest Period which,
as an exception, commences on this date and ends on MARCH 1, 2004,
the interest rate shall be THREE POINT SIX HUNDRED AND NINETEEN
PERCENT (3.619%). (Equivalent Annual Rate (T.A.E.) 3.6796% as per
Bank of Spain Circular 8/1990 dated September 7).
From March 1, 2004 onwards, the annual interest rate to be applied
shall be variable for each Interest Period in question and
calculated by adding to the EURIBOR one-year rate a fixed Margin or
Differential of ONE POINT TWENTY FIVE PERCENT (1.25%) PER ANNUM.
For the purpose of this agreement, the European Interbank Market
Interest Rate (EURIBOR) is understood to mean the European interest
rate for one year deposits of an amount equal or similar to the
capital pending repayment to Bank by Borrower, published on the
REUTERS EURIBOR 01 SCREEN AT ELEVEN O'CLOCK IN THE MORNING (11:00
A.M.) MADRID TIME, as of the date on which each successive Interest
Period commences. Such rate shall be expressed as a percentage of
interest per annum. Any expenses, commissions and brokerage fees
charged by the intermediaries that usually take part in this type of
transaction, plus the Value Added Tax that may be levied on the
intermediary's participation, shall also be added to the interest
rate resulting from the aforementioned transaction, together with
any tax, expense, commission or brokerage fee that may be directly
or indirectly levied upon, caused or replaced by or added to the
preceding ones.
SUBSTITUTIVE INTEREST RATE: If for any reason it is impossible to
determine the European Interbank Market interest rate as defined in
the preceding paragraphs, a substitute interest rate consisting of
the addition of the aforementioned differential to the arithmetic
mean (average) of Reference Bank interest rates shall be applied.
Reference interest rates are understood to be those applied by the
Reference Banks on the fifth day of each calendar month to private
sector clients on all types of three-month credit transactions, as
quoted by the Reference Banks to the Bank of Spain at the time at
which the substitutive interest rate is to be set. The Reference
Banks are: Banco Popular Espanol, Banco Bilbao Vizcaya Argentaria
and Banesto.
If at any time one or more Reference Banks fail to notify their
reference interest rates to the Bank of Spain, the arithmetic mean
of those that have duly notified it to the Bank of Spain shall be
used to calculate the reference interest rate. If only one of the
Reference Banks has notified its rates then this shall be taken as
the applicable reference rate.
As soon as the circumstances giving rise to the application of the
substitutive interest rate have ceased, the new European Interbank
Market interest rate in force shall again be applied to any new
drawdowns made thereafter.
3.3 On the first business day of each new Interest Period the Bank shall
notify the Borrower of the new EURIBOR interest rate applicable for
the said period prior to twelve a.m on that day.
The Borrower shall in turn notify the Bank by facsimile or mail,
prior to three p.m. on the first day of the new Interest Rate and by
means of the document signed and drafted in accordance with Schedule
I, whether it accepts or rejects such rate based on the interest
rate applicable on the EURIBOR Market. If for any reason, including
force majeure, the Bank fails to receive the said notice from the
Borrower without just cause prior to the indicated time, it shall be
fully understood that the Borrower accepts the interest rate
applicable on the European Interbank Market for that period.
3.4 Any modifications to interest rates shall be applied automatically
at the start of each interest period. If the Borrower rejects the
interest rate notified by the Bank without just cause, it should
repay the total amount of the loan to the latter on the date of
interest rate renewal.
3.5 The Borrower may prepay upon the expiration of any Interest Period,
provided that this is done in multiples of ONE THOUSAND EUROS. Such
partial or total prepayment shall in all cases be applied to reduce
the redemption installments set forth in Clause 2 above, and under
no circumstances may the Borrower draw the capital that has been
prepaid in this manner. Prepayment shall not incur any type of
penalty.
3.6 This transaction is subject to regulations on actions with clientele
established by Ministerial Order dated December 12, 1989 and
regulated by Bank of Spain Circular 8/1990 dated September 7.
4. FEES:
4.1 The following fee is payable in relation to the granting of this
loan: ZERO POINT TWENTY FIVE PERCENT PER ANNUM (0.25%) on the
quantity of the loan pending repayment to the Bank. Such amount
shall be paid by the Borrower on the date of execution of the
agreement and each of the successive anniversaries thereof, and the
Bank is empowered to obtain payment by debiting the Borrower's
checking account.
5 PAYMENT
5.1 On any date that the Borrower must pay any amount under the
Contract, without the need for the Bank to issue any demand at all,
it shall pay the amount owed on the day in question at a branch of
the Bank which shall be credited in the Loan account referred to in
Clause 11 below.
5.2 In addition, and without prejudice to the above, the Borrower hereby
irrevocably empowers the Bank to apply the payment of any amount
owed to it by the Borrower under this Contract, any balance or
balances that may exist in favor of the Borrower with the Bank
(whether at its head office or any of its branches) proceeding from
any type of accounts or deposits, as well as any amount or Loan
belonging to the Borrower or that is in the power of the Bank or
that the latter must satisfy. For this purpose, the Borrower also
irrevocably empowers the Bank to carry out any credit or debit
operations, foreign currency exchanges or acts that
may be necessary in applying the said balances and credits for the
payment of the amounts owed.
5.3 Those payments made by the Borrower shall go to pay off the amount
owed in the following order: 1) commissions, 2) default interest, 3)
taxes, 4) expenses 5) damages, 6) legal costs, 7) normal interest,
and 8) the loan principal.
6 TAXATION AND EXPENSES
6.1 The Borrower shall pay all taxes, fees, brokers' fees, customs
duties, stamp duties, and any other tax or expense of any other
nature that the preparation, entering into and fulfillment of this
Contract may entail. At the same time, and provided always that a
final judgment exists, it shall repay to the Bank all the expenses,
including the fees and expenses of lawyers and procuradores, which
the Bank may incur in defending or enforcing its rights hereunder
due to any breach of contract by the Borrower.
6.2 All amounts that the Borrower must pay to the Bank by virtue of this
Contract must be paid in full without any deduction or retention at
all. If for any reason the Borrower is obliged to make a deduction
or retention, except in the event that such obligation was imposed
by law on the Bank as recipient, it shall do so. However, it shall
pay to the Bank those additional amounts that are necessary to
ensure that the Bank receives a net amount equal to that which it
would have received if such a deduction did not have to be made
except where such an obligation is imposed on the bank as recipient
by law or by an act of a competent administrative authority.
7. DELAY IN THE FULFILMENT OF OBLIGATIONS
7.1 Without prejudice to the Bank's rights under Clause 8, if the
Borrower delays in the fulfillment of any of the payment obligations
under this Contract for whatever reason, even where it is not the
Borrower's fault, except where the delay is the fault of the Bank,
it shall pay to the Bank default interest, without prejudice to any
other liability which it may have as a result of such breach.
The default interest rate shall be calculated by adding 2 percentage
points (2%) to the interest rate defined in Clause 3 above, plus the
margin agreed by the parties hereto.
The default interest rate shall accrue on a daily basis and shall be
paid on the basis of a 360-day year, on the overdue amounts, from
the date on which payment should have been made and until the date
of actual payment in full.
Default interest shall be paid at the end of each month after the
delay commences and in any even on the date when the delay ends.
7.2 The Borrower shall be liable for all loss and damage with the
exception of indirect damage and loss of profit that are incurred by
the Bank arising from the need to establish, take, renew or cancel
third party deposits, in the event of the breach by the Borrower of
any of its obligations hereunder.
7.3 For the purposes of Article 317 of the Spanish Commercial Code, the
Bank may capitalize on a monthly basis interest due that remains
unpaid, whether normal or default interest, which will in turn give
rise to further interest payments, at the default rate referred to
in Clause 7.1.
8. LOSS OF GRACE PERIOD
8.1 The Borrower shall lose the grace period if it breaches, for any
reason, any of the obligations contained in this Contract following
the granting in writing to the Borrower of a period of five days to
make good any previous breach, except for any breach regarding
payment. In the latter case, the Bank may terminate forthwith this
Contract, and demand repayment of all amounts relating to the
principal, interest, commission, or any other amount owed to it by
the Borrower.
At the same time, the Bank may declare due and payable all amounts
that are owed by the Borrower for any other reason or under any
other contract.
By way of exception, in the event of the first failure to pay a
monthly amount, in order for the Bank to be able to terminate this
Contract it must send a demand for payment to the Borrower by
burofax, telegram or notarial document, and grant the latter an
additional period of ten days, such period to run from receipt of
the demand, the Borrower having failed to make the said payment.
This obligation to notify shall apply to failure to pay once during
every twelve month period of the Contract.
8.2 In addition, given that the present Contract has been entered into
on the basis of the current solvency of both the Borrower and the
Surety, if the solvency of either should deteriorate markedly during
the duration of the Contract the Borrower shall also lose the
benefit of the grace period and the Bank may require immediate
payment of all amounts of whatever nature that are owed to the Bank,
without acceptance by the Bank of any subsequent acts by the
Borrower in fulfillment of its contractual obligations being
interpreted as a waiver of its rights contained in this Clause,
which it may exercise at any time while the deterioration of the
solvency of the Borrower or the Surety is continuing.
8.3 Additionally, in the event the Borrower has disposed of the assets
listed in Clause 12 below, or otherwise, does not constitute a
pledge as agreed in such Clause 12 below, upon the request of the
Bank to such extent, the BANK shall be entitled to claim the prompt
refund of all the amounts owed thereto under this document, for any
reason, and, in any event, to terminate this Agreement and claim
such amounts from the Borrower or the Joint Guarantor
9. OTHER OBLIGATIONS OF THE BORROWER
9.1 The Borrower undertakes to maintain insured all of its property that
is essential for carrying out the object of the business. Further,
it shall pay in time all the premiums and fulfill the remaining
obligations contained in the insurance policy. In particular, it
shall not make any company other than Fortis Bank SA, Branch in
Spain a beneficiary of the goods set forth in Clause 12 below.
9.2 The Borrower shall inform the Bank immediately and in any event
within a period of not more than three days if any of the situations
take place that are provided for in the above clauses or other
situations not mentioned therein, but whose effect was the
significant reduction in its solvency.
9.3 The Borrower undertakes to fulfill punctually all of its obligations
concerning tax and social security.
10. LOAN ACCOUNT
10.1 For the purposes of the present Loan Contract, the Bank will open an
account in the Borrower's name in which all matters referring
thereto shall be entered. In the `Credit' section of that account
shall be stated all of the amounts which for any matter in relation
to this Contract the Borrower pays to the Bank. In the `Debit'
section shall be stated all of the amounts that, for any of the
matters referred to in this Contract, the Borrower owes to the Bank.
The said account shall indicate at any given moment the amounts that
the Borrower owes to the Bank.
10.2 Once the due date has expired or, where appropriate, the contract
has been terminated and the Borrower (or its sureties) have failed
to comply with their payment obligations following receipt of a
demand for that purpose the Bank may commence an action to enforce
its rights under Article 517 of Law 1/2000 of Civil Procedure (Ley
de Enjuiciamiento Civil).
10.3 For the purposes of Article 572 of Law 1/2000 of Civil Procedure
(Ley de Enjuiciamiento Civil), it is expressly agreed by the parties
hereto that the demandable amount in the event of enforcement will
be that resulting from the settlement carried out by the Bank in the
manner agreed by the parties in this Contract and for that amount
stated in the balance of the Account on the day of closure. In this
regard, for the purposes of enforcement it shall be sufficient to
file the documents required under Law 1/2000 of Civil Procedure,
together with the certification specified in Article 517 of the said
Law 1/2000, and the delivery of a statement of final settlement
issued by the Bank of the balance owed by the Borrower, contained in
a notarised document that states that the liquidation of the debt
has been carried out in the manner provided for by the parties to
the Contract.
11. REPRESENTATIONS OF THE BORROWER
11.1 The Borrower warrants that all the data, documents, and information
that it has supplied to the Bank which have been relied on by the
latter when deciding to enter into this Contract are true and
correct, and in addition they have not substantially changed in the
time elapsing between their delivery to the Bank and the signature
of this Contract. If this is not the case the Borrower shall be
deemed to have breached one of its essential obligations under this
Contract.
12. PROMISE OF REGISTERED CHARGE WHILE RETAINING POSSESSION
12.1 In guarantee of the obligations hereunder, without prejudice to
its unlimited personal liability, and without prejudice to any
other guarantee already or subsequently entered into, in
accordance with the provisions of Law dated 16 December 1954
developed by Royal Decree dated 17 June 1955 the Borrower
undertakes irrevocably to execute a Public Deed or a Charge while
Retaining Possession (Poliza de Prenda sin Desplazamiento) (`the
Charge') in the Bank's favor within a period of three days from
the date on which the same was formally demanded by the Bank. The
Bank may make such a demand at any time during the term of this
Contract, without the need to state any grounds at all for so
doing, in order to guarantee the loan, in particular the
Borrower's obligations as regards the payment of principal and
interest, whether normal or default, up to the amount of the
security offered.
12.2 The Charge in question shall be over the properties situated in
Alcobendas, Madrid, C/Valgrande 6, owned by the Borrower, being
the following:
12.2.1 Installations 22200045 - 11/2000/12/0599 Sainco, whose value at
the date hereof amounts to 450,094 euros.
12.2.2 Installations 22200047 - 20001219020027550 Iberdrola, whose value
at the date hereof amounts to 452,153 euros.
12.2.3 Installations 22200063 - C-0057/01 Carrierhouse, whose value at
the date hereof amounts to 76,105 euros.
12.2.4 Installations 22200073 - C-0111/01 Carrierhouse, whose value at
the date hereof amounts to 6,987,588 euros.
12.2.5 Installations 22200096 - C-0078/02 Carrierhouse, whose value at
the date hereof amounts to 57,883 euros.
12.2.6 Installations 22200103 - C-0104/02 Carrierhouse, whose value at
the date hereof amounts to 14,573 euros.
12.2.7 Installations 22200106 - C-0108/02 Carrierhouse, whose value at
the date hereof amounts to 1,958,674 euros.
12.3 The above-mentioned assets are insured under an Insurance Policy
with number 0807/100095 issued by the Belgian insurance company
ACE INSURANCE SA NV with Tax Identification Number (NIF)
A-0021149-J and the Borrower shall appoint the Bank as the
beneficiary of such insurance policy following receipt of the
first demand issued by the Bank so requesting this.
12.4 The refusal of the Borrower to enter into the Charge including
the requirements referred to above shall lead to the loss of the
grace period referred to in Clause 8 above. All of the expenses
and taxes resulting from the execution of the Charge shall be
paid by the Borrower, in particular the notary and registration
fees, as well as those of a taxation nature that may be
applicable.
13. SURETYSHIP
13.1 ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, present in this act for and on
behalf of ABENGOA S.A., whose personal details are stated on the
first page hereof, jointly and severally guarantees with the
Borrower the fulfillment of each and every obligation of the
Borrower hereunder, without prejudice to the unlimited personal
liability of the Borrower and without prejudice to any other
guarantee, whether from Abengoa S.A. or another third party, that
may be entered into in the future. In particular, he guarantees
all payment obligations, whether of principal, ordinary or
penalty interest, commissions and expenses that could arise under
this loan. As a result, Abengoa S.A., as joint and several surety
undertakes to fulfill, while the present loan is not totally
unsatisfied, each and every one of the Borrower's obligations
hereunder, and expressly waives the right to excussio (surety's
right not to be obliged to pay while the debtor can cover the
amount owed), and the right of priority and division, all of the
above in accordance with the provisions of Articles 439 et seq of
the Commercial Code, and Articles 1144, 1822, 1831 and 1837 and
related provisions of the Civil Code.
13.2 The Surety expressly agrees that this suretyship shall not be
prejudiced by the postponements or extensions that the Bank may
grant to the Borrower, nor for the division of the debt or
payment on account that the Bank may make before or after the due
date. When the obligations hereunder are demandable the Bank may
reclaim the amount from the Surety jointly and severally or
alternatively enter it as a debt in the accounts which it
maintains, in its own name or together with others.
14. APPLICABLE LAW AND JURISDICTION
14.1 This contract shall be governed by Spanish law.
14.2 The parties to the Contract expressly waive any right that they
may have to any other jurisdiction and hereby agree to submit to
the courts of Madrid for the resolution of any issues that may
arise in relation to this Contract.
15. VARIOUS
15.1 For the purposes of this contract, working day shall mean a day
on which banks are generally open to the public and in Madrid to
carry out operations with deposits in euros. Saturday shall not
be considered to be a working day.
15.2 Any period that ends on the date that is not a working day shall
be carried over to end on the next working day, except where the
next working day is not in the same month, in which case the last
working day of the month in question shall apply.
15.3 The parties expressly agree that in the situations provided for
in this Contract, correspondence by telegraph, or by telex or
telefax shall have binding effect without the need for the
notices to contain any type of conventional key or sign. This
shall apply except in those cases where such notification could
lead to a loss of the grace period, in which case it shall be
necessary for such notification to be in one of the following
forms: telegram, burofax, or notarial document.
15.4 The parties' addresses for the service of demands, and other
notifications and communications, whether court or non-court, are
those set forth in the heading of this Contract.
15.5 Any change to the address for service or telex or telefax numbers
shall have no effect unless and until it is notified in a
notarised document to the other party.
16. LEAFLET OF CONDITIONS
The commissions and expenses arising under this Contract, together with the
conditions of valuation, are detailed in the specific leaflet held by the Bank
which is at the disposal of its clients. The Bank may amend the terms of the
leaflet informing the Borrower by way of:
A) Publication on the notice board of the Bank; if the Borrower does
not make known to the Bank its opposition to such changes within two
(2) months, they shall be deemed to be fully accepted, or
alternatively
B) Individualized information to the Borrower; the latter is deemed to
accept the changes unless it opposes them within a period of fifteen
(15) days.
17. NATURE OF THE CONTRACT
The present contract is of a commercial nature, and constitutes a normal and
typical operation of the Bank, for which reason it is expressly requested that
it is not subjected to Capital Transfer Tax (Impuestos sobre Transmisiones
Patrimoniales), being subject to VAT, although exempt therefrom.
And in compliance with the above the parties hereby sign this Contract in four
counterparts in the place and on the date stated in the heading hereof, and with
the intervention of the Notary public who authenticates the content hereof as
well as the
legal capacity of the parties and the legitimacy of the signatures of the
contracting parties.
Signed
The Bank The Borrower
Signature illegible Signature illegible
The Surety Seal of Notary Public
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Signature illegible
SCHEDULE I
FORTIS BANK ▇▇ ▇▇▇▇▇▇ in Spain
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▇▇▇▇▇▇ ▇▇▇▇▇ In......on.... of........ 20..
Dear Sirs
In accordance with the provisions of Clause 3 of the loan agreement for the
principal sum of TEN MILLION EUROS, entered into by yourselves the Bank and
ourselves the Borrower, and dated ...... of .................. 2003, we confirm
our acceptance of the proposed interbank interest rate of .... percent (...%)
relating to the period of interest from .... of .... of 20.. to the ... of
........... 20.. and whose payment shall be made, together with the amount
corresponding to the repayment of the capital, in accordance with the terms
agreed in the Contract.
Yours faithfully
The Borrower
Seal of Notary Public
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