Loan Policy - Caja de Ahorros y Monte de Piedad de Madrid and SA de Instalaciones de Control
LOAN POLICY
BANK 5910 LOAN 659738392
In Madrid on October 25, 2001
PARTIES
The "CAJA DE AHORROS Y MONTE DE PIEDAD DE MADRID" (Monte de Piedad Savings Bank
of Madrid), hereinafter called the SAVINGS BANK, duly represented herein by
Jordi Pera Matas with DNI (National Identity Document) 36.514.341R and Jesus
Manuel Rubio Sanchez with DNI 8.693.011T, hereby loans the sum of THREE MILLION
SIX HUNDRED AND FORTY TWO THOUSAND ONE HUNDRED AND THIRTY THREE POINT THREE FIVE
EUROS (3,642,133.35 EUROS) to the BORROWER, "S.A. de Instalaciones de Control",
with CIF (Corporate Tax Identification Code) A28114981 with registered office in
Alcobendas (Madrid) C/ Valgrande, 6, duly represented herein by Pedro Bernad
Herrando, with DNI 17.228.150. This commercial loan arrangement (under article 2
of the Commercial Code) has been overseen by the undersigned notary public, duly
called in for that purpose, and the borrower hereby acknowledges receipt of the
above sum.
CLAUSES
ONE. The loan capital will accrue an annual nominal interest of 4.95%, variable
according to the procedure to be explained later. The loan will accrue an
arrangement fee of 0.35% on the total loan sum, to be paid by the borrower in a
single sum when formalizing this contract.
TWO. The loan term will be 84 months, this time to run from the date of this
contract. The loan will be paid back to the Savings Bank in 28 quarterly
installments of 154,705.99 euros, each one comprising capital and interest,
which will fall due successively and in the same periods as from the date of
this contract.
The value of the installments to be paid will be revised in the successive
interest rate periods in line with the updating of the interest rate for the
period in question, pursuant to the arrangement agreed upon in clause six.
<PAGE>
Should there be no equivalent day to the initial calculation day in any month
when an installment falls due, the due date will be taken to be the last day of
the month, without this entailing any modification whatsoever of the subsequent
due dates.
/s/ FERNANDO MOLINA STRANZ
NOTARY PUBLIC OF MADRID
<PAGE>
For information purposes it is hereby put on record that the annual percentage
rate (Tasa Annual Equivalente) (APR) corresponding to the agreed nominal rate is
5.15%. This APR has been calculated using the formula laid down in annex V of
circular 8/1990 of 7 September of the Bank of Spain, published in the Official
State Gazette (BOE) 226 of 20 September 1990 and modified by the Bank of Spain
circular 13/1993 of 21 December, published in the Official State Gazette on 31
December 1993 and by circular 3/1996 of 27 February, published in the Official
State Gazette on 13 March 1996.
Pursuant to the provisions laid down in said Circular 8/90 the APR calculation
has not taken into account such costs as the borrower might be bound to pay
under the contractual arrangement and the payment terms thereof: a) Costs that
the client might avoid by virtue of its contractual powers and in particular
fund transfer costs; b) Costs to be paid to third parties, in particular:
brokerage, notarial expenses, taxes, agency costs, valuation, registration; c)
Insurance or guarantee costs, except for insurance premiums to guarantee
repayment of the loan to the bank in the event of the death, invalidity or
unemployment of the borrower and providing that the taking out of said insurance
policy has been imposed by the bank as a credit-granting condition; e) (sic)
Costs deriving from any breach of contractual terms by the borrower and in
particular procedural costs, the fees of legal counsel and legal
representatives.
THREE. The total interest accrued in each period will be calculated according to
the following formula:
Interest = the capital pending at the beginning of each period multiplied by the
annual nominal interest rate divided by the number of annual payments.
FOUR. The sums to be paid by the borrower, pursuant to the agreements reached
herein, will be increased by such taxes and costs as may be legally or
contractually incumbent thereon.
FIVE. The payments will be made by standing order into a current account or by
means of a savings book opened in the Savings Bank.
SIX. The agreed interest rate will be determined by quarterly periods, to run
from the date of signing this contract. During the first quarter it will be the
rate shown in clause one hereof.
For successive periods the contracting parties will proceed to revise said
interest rate and determine the interest rate for the following period, in due
accordance with the procedure to be explained later.
The rate to be applied for each quarterly period will be the three-month EURIBOR
(monthly mean) in force at the moment of carrying out the revision, increased by
0.60 percentage points and rounded up or down to two-decimal places.
For these purposes the three-month (monthly mean) EURIBOR (EURO INTERBANK
OFFERED RATE) will be understood to be the average three month interest rate at
which
<PAGE>
interbank deposits are offered within the Euro zone by a bank of high standing
to another bank of high standing.
This rate will be officially published by the Central European Bank on its main
website and in its monthly newssheet, in the section headed "Interest rates of
the money market". For the purposes of the revision consideration will be given
to the rates published in either medium, whichever comes out earlier; if need be
the publication thereof will be sought from the Central European Bank itself. In
default of the publication thereof consideration will then be given to the
replacement publication containing the same information.
In default of said reference rate or the official publication thereof, the
reference lending rate for savings banks at the time of the revision will be
used instead for the identical time period. This rate is also published
officially and periodically by the Bank of Spain in the BOE, for variable-rate
house-buying mortgage loans. The application criterion used will be the same as
for the initially envisaged reference rate.
If legally bound to do so, the Savings Bank will inform the borrower of the
variation in the interest rate, by mail, as from the day following the due date
of each three-month period. The variation will automatically be applied twenty
days after the date of said communication and with effect from said due date,
without the borrower having declared any opposition whatsoever in the contract.
The value of the aforementioned installments will thereby be modified.
Should the borrower be opposed to this modification it will be entitled to
cancel the transaction at the rate in force before the variation implemented,
doing so within the same twenty-day period.
SEVEN. The borrower will be entitled to make early repayments of the loaned
capital. At its choice, this will have the effect either of reducing the
repayment installment or the repayment term, the installment remaining the same
in the latter case. If no overt choice is made at the time of making the
advanced payment, it will be applied to a reduction of the repayment term.
When making any advanced repayment of the loan capital, the borrower will be
bound to pay a 1% commission on the value of the repaid capital.
EIGHT. This loan has been conceded by the SAVINGS BANK on the basis of the
current situation of the borrowing party in terms of solvency and normal
compliance with its obligations taken on with said bank and with third parties
and such guarantees as have been furnished both with the Savings Bank and by
third parties. In view of this the parties hereto make special provision for the
following agreements, any breach of which will be grounds for discharging the
contract, with the same effects as those laid down for other
contract-discharging grounds.
A) Covenant of equal coverage:
<PAGE>
1) The borrower undertakes not to furnish better guarantees in
favor of third party creditors than those offered to the
SAVINGS BANK herein, without previously obtaining the consent
of the latter or granting identical guarantees in its favor.
B) Maintenance of the shareholding structure
In view of the fact that the current shareholding structure of the borrowing
company was considered to be an especially important factor when deciding
whether to grant this loan, SAINCO binds itself to continue to form part of the
group of the parent company ABENBOA, S.A., as this relationship is defined in
the corporation tax arrangements.
To avoid the effects of said contractual discharge, therefore, the borrower, in
light of its relation with said shareholders and its dependence thereon or
association therewith, binds itself to inform them of everything agreed in the
previous paragraph, in order to be able to assume and comply with the commitment
taken on with the Savings Bank, and to inform the latter, with a month's notice,
of any change to the shareholding structure affecting the stake of the
aforementioned shareholders.
C) Likewise, at the moment of formalizing this transaction, the
borrowing company will furnish documents vouching for the amount of
the investment to be made with this loan.
NINE. The following will be grounds for discharging this contract:
1) Breach by the borrowers of any obligations taken on hereunder,
and especially failure to pay any of the previously agreed
debt-amortization installments and also breach of any of the
obligations taken on by the borrowers under any contract
entered into with the Savings Bank, especially the failure to
pay any debt-amortization installments or the debt of a credit
card.
2) In the event of any creditors' meeting, suspension of payments
or bankruptcy of the borrowers, application for a standstill
agreement, out-of-court agreement with its creditors,
liquidation of part of its assets, application for a
suspension of payments or bankruptcy or any similar action or
procedure, judicial or private, of the borrowers against them,
which might lead to identical results and also if all or part
of the assets of any of them are seized or undergo a
significant reduction of value. All the borrowers are jointly
and severally bound to notify the bank of any of the above
circumstances, otherwise incurring in the legally established
liability for failure to do so.
3) The inaccuracy of any of the declarations or guarantees made
by the borrower to the SAVINGS BANK or the concealing or
falsifying of data or documents, whether accounting documents
or any other type, furnished by the borrower and having a
significant effect on its capacity to meet its obligations
deriving herefrom.
<PAGE>
4) If this contract and the rights deriving therefrom for the
Savings Bank are not maintained at least with the same
preferences, privileges and rank as those deriving for other
financial creditors from any loan or credit or financing
contracts entered into with the borrower(1).
5) If any other debt incurred by the borrower with respect to
sums borrowed or funds raised in any other way should become
liquid and payable or subject to being declared liquid and
payable before its corresponding due date; if said debt is not
paid on falling due; if any guarantee furnished by the
borrower is not enforceable or proves not to be so when an
enforcement application is made, or if any other encumbrance
set up by the borrower on goods it owns should become
enforceable.(2)
6) When, without any of the above grounds obtaining, all or part
of the borrowers' property is seized or undergoes a
significant reduction in its value vis-a-vis the declaration
of property and solvency made in the loan application
proceedings or is likely to occur in view of any change in the
borrowers' economic situation, according to said declaration
of property or solvency, due to the failure to pay bills,
mortgages, the seizure or sale of 20% of the property formerly
declared or subsequently added to the stock of wealth.
7) If the borrowing company leaves the registered head office
whose construction work is the object of this loan.
TEN. The borrower will fall in arrears on the day following the date stipulated
for any payments mentioned in previous clauses. The borrower will then be bound
to pay a nominal interest rate 4 percentage points higher than the rate in force
at the time of the payment, this applied to the sums owed on any grounds.
The delayed-payment interest will accrue by calendar days and the Savings Bank
will be entitled to capitalize the unpaid delayed-payment interest as laid down
in article 317 of the Commercial Code. This delayed payment interest will be
paid over the same periods as are laid down herein for debt-repayment
installments.
As soon as there are any arrears in complying with the obligations arising
herefrom, the place of compliance with said obligations will be understood for
all legal purposes to be the registered head office of the Bank of Caja de
Madrid that dealt with the transaction, as shown at the head hereof.
ELEVEN. This contract may be discharged when any of the abovementioned grounds
obtain or when the borrower breaches any of the obligations contractually
incumbent thereon.
Once the contract has been discharged, the Savings Bank will be entitled to take
all such action, including legal action, as may correspond thereto against the
borrower, who hereby expressly renounces the benefits of the legal exceptions of
priority, division and excussion. This action may be taken to claim from the
borrower the sums owed, both overdue and
--------------
(1) Pari passu clause
(2) Cross default
<PAGE>
pending maturity, with their corresponding interest payment, including
delayed-payment interest, procedural costs and expenses including the fees of
legal counsel and legal representative.
The mere act of the claim being brought by the Savings Bank will imply
discharging of the contract.
TWELVE. For exercising the legal action deriving herefrom, even in the case of
enforcement, given that the sum loaned is liquid in origin, it will suffice for
the claim to be accompanied with the original of this contract, with such
formalities as may be laid down by law, including, where applicable, those
especially required for enforcement action, all with the purpose of restoring to
the Savings Bank the principal, interest and fees, plus such costs as may be
incurred in the proceedings.
Without thereby forfeiting its real nature and the concomitant preference, as
expressly agreed by the parties, the SAVINGS BANK will be entitled to present
its own determination of the debt settlement, a commissioner of oaths being
called in by the latter to certify that the payable amount is the result of the
Saving Bank's settlement and that this has been carried out in the form agreed
by the parties hereto.
THIRTEEN. For the purposes of repaying any sums owed, the Savings Bank will be
empowered to apply thereto any sums deposited by the borrowers in other accounts
currently open in the bank.
The signing of this policy by the parties thereto entails express acceptance of
these charges.
Likewise the borrowers hereby authorize the Savings Bank to sell any securities
of any type that the borrowers have deposited in the bank, with the purpose of
applying the sum thereby raised towards repayment of the sums owing hereunder.
FOURTEEN. The borrowers will be responsible for paying any costs and taxes that
may be occasioned by this contract, including the notarial certification of this
contract. The Savings Bank is authorized to charge these costs to the borrowers'
account.
FIFTEEN. In the event of any legal action, the parties hereto agree that the
competent court will be determined in due accordance with the provisions laid
down by the Spanish Civil Proceedings Law in view of the type of trial or action
pursued. In the case of enforcement action the parties agree that the place of
compliance with the obligation is the Branch of Caja Madrid in which the
standing order arrangements have been made for the loan payments.
SIXTEEN. Pursuant to the provisions laid down in the Personal Data Protection
Law, the parties hereto are hereby informed and expressly agree that these data
be entered in the personal data files run by CAJA MADRID and that they be
processed, by computer or otherwise, by CAJA MADRID with commercial, financial,
operative and statistical purposes. The parties hereto also give their express
consent for the data to be communicated to other banks of Grupo Caja Madrid for
the same purposes, so that they
<PAGE>
may be used by the latter in activities bound up with their corporate purpose in
financial, real estate and insurance affairs. The parties hereby declare
themselves to have been notified of said assignment.
Likewise, CAJA MADRID and the banks of its group are authorized to use these
data for sending to the parties hereto any commercial information on any goods,
products or services it markets or finances, directly or otherwise, both now and
in the future. This data communication will be made only with the abovementioned
purposes and with such consequences as may derive from the law.
The personal data furnished by the parties to the person running the file are a
sine qua non of entering into this loan contract.
CAJA MADRID guarantees that all the personal data contained herein will be used
for the purpose, in the form and with the limitations and rights conceded by the
Personal Data Protection Law 15/1999 (Ley Organica de Proteccion de Datos de
Caracter Personal). This consent is given without forfeiting any of the rights
pertaining thereto under the aforementioned law and especially the possibility
of exercising without cost the rights of opposition, access and information,
rectification, cancellation of these data and revocation of its authorization
without retrospective effects. These rights may be exercised by means of a
written communication sent to the General Register of Caja Madrid in Plaza de
Celenque n(0) 2, 28013, Madrid or to any branch of this bank.
The parties hereto expressly declare their conformity with and approval of the
contents of this contract. In witness whereof, and after the due handover of the
sum loaned, the parties sign this policy in quadruplicate. I intervene herein
for all due purposes and especially those laid down in the Civil Proceedings
Law.
CAJA DE AHORROS Y MONTE S.A. DE INSTALACIONES DE
DE PIEDAD DE MADRID CONTROL
/s/ Jordi Pera Matas /s/ Jesus Manuel Rubio Sanchez /s/ Pedro Bernad Herrando