Exhibit 10.5
EUR 16,000,000,000
FACILITY AGREEMENT
dated 26 April 2004
for
SANOFI-SYNTHELABO
arranged by
BNP PARIBAS
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS
as Mandated Lead Arrangers
with
BNP PARIBAS
acting as Agent
[FRESHFIELDS BRUCKHAUS ▇▇▇▇▇▇▇▇ LOGO]
CONTENTS
CLAUSE PAGE
1. Definitions and interpretation....................................................................2
2. The Facilities...................................................................................17
3. Purpose..........................................................................................17
4. Conditions of Utilisation........................................................................18
5. Utilisation......................................................................................23
6. Optional Currencies..............................................................................26
7. Repayment........................................................................................27
8. Prepayment and cancellation......................................................................28
9. Interest.........................................................................................36
10. Interest Periods.................................................................................39
11. Changes to the calculation of interest...........................................................40
12. Fees.............................................................................................41
13. Tax gross up and indemnities.....................................................................43
14. Increased costs..................................................................................46
15. Other indemnities................................................................................47
16. Mitigation by the Lenders........................................................................48
17. Costs and expenses...............................................................................49
18. Representations..................................................................................50
19. Information undertakings.........................................................................53
20. Financial covenants..............................................................................55
21. General undertakings.............................................................................56
22. Events of Default................................................................................61
23. Changes to the Lenders...........................................................................66
24. Changes to the Obligors..........................................................................69
25. Role of the Agent and the Mandated Lead Arrangers................................................71
26. Conduct of business by the Finance Parties.......................................................76
27. Sharing among the Finance Parties................................................................76
28. Payment mechanics................................................................................78
29. Set-off..........................................................................................80
30. Notices..........................................................................................80
31. Calculations and certificates....................................................................82
32. Partial invalidity...............................................................................82
33. Remedies and waivers.............................................................................82
34. Confidentiality..................................................................................83
CLAUSE PAGE
35. Amendments and waivers...........................................................................84
36. Governing law....................................................................................85
37. Enforcement - Jurisdiction of French courts......................................................85
38. Election of domicile.............................................................................85
THIS AGREEMENT is dated 26 April 2004 and made between:
(1) SANOFI-SYNTHELABO, a French company whose registered office is at ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number 395
030 844 RCS Paris (the "COMPANY");
(2) BNP PARIBAS, a French company whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number 662 042
449 RCS Paris and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS, a limited liability
company registered under the laws of the State of Delaware whose
registered office is at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, as mandated lead arrangers, underwriters and
joint-book runners (whether acting individually or together the "MANDATED
LEAD ARRANGERS");
(3) BNP PARIBAS, a French company whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number 662 042
449 RCS Paris and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS, a limited liability
company registered under the laws of the State of Delaware whose
registered office is at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, as lenders (the "ORIGINAL LENDERS");
(4) BNP PARIBAS, a French company whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number 662 042
449 RCS Paris, as agent of the other Finance Parties (the "AGENT"); and
(5) BNP PARIBAS, a French company whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number 662 042
449 RCS Paris, as presenting bank for the purpose of Clause 5
(Utilisation) only (the "PRESENTING BANK").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).
"ACCEPTED SHARES" means the Shares which are to be acquired by the Company
following the definitive tendering to the Offer of such Shares by their
holders.
"ACQUISITION" means the acquisition of the Shares in accordance with the
Offer.
"ACQUISITION LOAN" means a Facility A Loan, a Facility B Loan or a
Facility C Acquisition Loan.
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"ACQUISITION PAYMENT" means a payment of the amount of cash consideration
(determined by reference to the cash consideration payable per Shares
under the Offer in respect of Accepted Shares) required to be paid by or
on behalf of the Company under the Offer on the Settlement Date relating
to Accepted Shares.
"ADDITIONAL BORROWER" means Target provided that it accedes to this
Agreement and any company which becomes an Additional Borrower in
accordance with Clause 24 (Changes to the Obligors).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(Mandatory Cost formulae).
"ADDITIONAL OFFER" means any (i) additional offer resulting from the
reopening of the Original Offer for additional acceptances which may be
initiated by the Company following the Original Offer period in accordance
with the provisions of article 5-2-3-1 of the Reglement General du CMF or
(ii) distinct offer (offre publique simplifiee) made by the Company for
all of the then outstanding Shares of the Target following the Original
Offer period in accordance with the provisions of Chapter 3 of Titre III
of the Reglement General du CMF.
"ADDITIONAL OFFER RESULT NOTICE" means a notice published by the AMF of
the final outcome of any Additional Offer (avis de resultat) specifying
(amongst other things) the number of Shares that have been tendered to the
Offer by their holders and which are to be acquired by the Company
pursuant to the Additional Offer.
"ADDITIONAL OFFER SETTLEMENT DATE" means the date on which an Acquisition
Payment is to be made in respect of any Additional Offer.
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
Paris foreign exchange market at or about 11:00 a.m. on a particular day.
"AMF" means the Autorite des marches financiers.
"ANNOUNCEMENT DATE" means the date of filing of the Original Offer with
the AMF, i.e. 26 January 2004.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means (in each case, subject to Clause 8.4
(Mandatory Cancellation)):
(a) in relation to Facility A, the period from and including the date of
this Agreement to and including the Facility A Final Maturity Date;
(b) in relation to Facility B, the period from and including the date of
this Agreement to and including the Facility B Final Maturity Date;
and
(c) in relation to Facility C, the period from and including the date of
this Agreement to and including the Facility C Final Maturity Date.
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"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any outstanding
Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Loans that are due to be made under that
Facility on or before the proposed Utilisation Date, other than, in
relation to Facility C only, that Lender's participation in any
Facility C Loans that are due to be repaid or prepaid on or before
the proposed Utilisation Date.
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"BASE CURRENCY" means Euro.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, the amount specified
in the Utilisation Request delivered by a Borrower (or, as the case may
be, by the Presenting Bank) for that Loan (or, if the amount requested is
not denominated in the Base Currency, that amount converted into the Base
Currency at the Agent's Spot Rate of Exchange on the date which is three
Business Days before the Utilisation Date or, if later, on the date the
Agent receives the Utilisation Request) adjusted to reflect any repayment,
prepayment, consolidation or division of the Loan.
"BORROWER" means the Company or any Additional Borrower unless it has
ceased to be a Borrower in accordance with Clause 24 (Changes to the
Obligors).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (calculated without taking into account the Facility A
Margin, the Facility B Margin, or, as applicable, the Facility C
Margin) which a Lender should have received for the period from the
date of receipt of all or any part of its participation in a Loan or
Unpaid Sum to the last day of the current Interest Period in respect
of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and Paris, and:
(a) (in relation to any date for payment or purchase of a currency other
than euro) the principal financial centre of the country of that
currency; or
(b) (in relation to any date for payment or purchase of euro) any TARGET
Day.
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"COMMITMENT" means a Facility A Commitment, a Facility B Commitment or a
Facility C Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 8 (Form of Compliance Certificate).
"COMPANY'S CONSIDERATION SHARES" means the new shares of the Company to be
offered to Target shareholders in consideration of the Shares tendered to
the Offer pursuant to the terms thereof.
"CONFIDENTIAL INFORMATION" means any information to be delivered by the
Company pursuant to Clauses 19 (Information Undertakings) and 21.8 (Offer)
but excludes information that (a) is or becomes public knowledge other
than as a direct or indirect result of any breach by any Finance Party of
this Agreement or (b) is known by the Finance Parties (or any of them)
before the date the information is disclosed to such Finance Party(ies) by
the Company or is lawfully obtained by any Finance Party after that date,
other than from a source which is connected with the Company and which, in
either case, as far as the relevant Finance Party is aware, has not been
obtained in violation of, and is not otherwise subject to, any obligation
of confidentiality.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in the form set out in Schedule 10 (Form of Confidentiality
Undertaking).
"CONSOLIDATED SUBSIDIARY" means any company which is consolidated by way
of "integration globale" in the audited consolidated financial statements
of the Company from time to time.
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 22 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"ENGAGEMENT LETTER" means the engagement letter dated on or about the date
of this Agreement between the Mandated Lead Arrangers and the Company in
relation to the Facility.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by
the Reference Banks to leading banks in the European interbank
market,
as of the Specified Time on the Quotation Day for the offering of deposits
in euro for a period comparable to the Interest Period of the relevant
Loan.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 22 (Events of Default).
"FACILITY" means Facility A, Facility B and/or Facility C as the case may
be.
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
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"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading "Facility A Commitment" in
Part II of Schedule 1 (The Original Parties) and the amount of any
other Facility A Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility A Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY A FINAL MATURITY DATE" means the date on which all the Facility
A Loans shall be repaid in full, being the Facility A Original Final
Maturity Date or, upon exercise of the First Extension Option, the
Facility A First Extended Final Maturity Date or upon the exercise of the
Second Extension Option, the Facility A Second Extended Final Maturity
Date.
"FACILITY A FIRST EXTENDED FINAL MATURITY DATE" means 25 July 2005 (or if
that Day is not a Business Day, the preceding Business Day).
"FACILITY A LOAN" means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.
"FACILITY A MARGIN" means the margin applicable to Facility A Loan as
determined in accordance with Clause 9.1 (Facility A Calculation of
Interest).
"FACILITY A ORIGINAL FINAL MATURITY DATE" means 24 January 2005 (or if
that Day is not a Business Day, the preceding Business Day).
"FACILITY A SECOND EXTENDED FINAL MATURITY DATE" means 25 January 2006 (or
if that Day is not a Business Day, the preceding Business Day).
"FACILITY B" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading "Facility B Commitment" in
Part II of Schedule 1 (The Original Parties) and the amount of any
other Facility B Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility B Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY B LOAN" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"FACILITY B MARGIN" means the margin applicable to Facility B Loan as
determined in accordance with Clause 9.2 (Facility B Calculation of
Interest).
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"FACILITY B FINAL MATURITY DATE" means 25 January 2007 (or if that Day is
not a Business Day, the preceding Business Day).
"FACILITY C" means the multicurrency revolving loan facility made
available under this Agreement as described in Clause 2 (The Facilities).
"FACILITY C ACQUISITION LOAN" means a loan made or to be made under
Facility C or the principal amount outstanding for the time being of that
loan for the purpose of financing an Acquisition Payment.
"FACILITY C COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading "Facility C Commitment" in
Part II of Schedule 1 (The Original Parties) and the amount of any
other Facility C Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility C Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY C FINAL MATURITY DATE" means 25 January 2009 (or if that Day is
not a Business Day, the preceding Business Day).
"FACILITY C LOAN" means a loan made or to be made under Facility C or the
principal amount outstanding for the time being of that loan.
"FACILITY C MARGIN" means the margin applicable to Facility C Loan as
determined in accordance with Clause 9.3 (Facility C Calculation of
Interest).
"FACILITY OFFICE" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under this
Agreement.
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arrangers and the Company (or the
Agent and the Company) setting out any of the fees referred to in Clause
12 (Fees).
"FINANCE DOCUMENT" means this Agreement, the Engagement Letter, any Fee
Letter, any Accession Letter, any Guarantee, any Resignation Letter and
any other document designated as such by the Agent and the Company.
"FINANCE PARTY" means the Agent, a Mandated Lead Arranger or a Lender.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
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(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with GAAP, be treated as a
finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only
the marked to market value shall be taken into account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (h) above.
"FIRST EXTENSION OPTION" means the option available to the Company to
request pursuant to clause 7.1(b) that the date on which all Facility A
Loans shall be repaid in full be extended until the Facility A First
Extended Final Maturity Date.
"GAAP" means, in relation to any financial statements, generally accepted
accounting principles in the jurisdiction in which the entity to which
such financial statements relate is incorporated.
"GROUP" means the Company and its Subsidiaries from time to time.
"GUARANTEE" means a first demand guarantee (garantie a premiere demande)
given by the Company in the form set out in Schedule 12 (Form of
Guarantee).
"GUARANTOR" means the Company in its capacity as guarantor under a
Guarantee.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INCREASED OFFER" means the offer for all the Shares of Target to be filed
by the Company on the Increased Offer Announcement Date and pursuant to
which the consideration offered to the holders of the Shares of Target
will be higher than the consideration previously offered to such holders
for all the Shares of Target pursuant the Original Offer filed on the
Announcement Date.
"INCREASED OFFER ANNOUNCEMENT DATE" means the date of filing of the
Increased Offer with the AMF, which date shall be no later than 10
Business Days following the signing of this Agreement unless otherwise
agreed by the Lenders.
"INFORMATION MEMORANDUM" means the document in the form approved by the
Company concerning the Group which, at the Company's request and on its
behalf, will be prepared in relation to this transaction and distributed
by the Mandated Lead Arrangers to selected financial institutions for the
purpose of the syndication of the Facility.
-8-
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 9.7 (Default
interest).
"LENDER" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 23 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan in an Optional Currency:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest Period
of that Loan) the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the Agent at its request quoted
by the Reference Banks to leading banks in the London interbank
market,
as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest
Period for that Loan.
"LOAN" means a Facility A Loan, a Facility B Loan or a Facility C Loan.
"L'OREAL" means L'Oreal SA, a French company whose registered office is at
▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number 632 012
100 RCS Paris.
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3% of the Total Commitments
(or, if the Total Commitments have been reduced to zero, aggregated
more than 66 2/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 66 2/3% of all the Loans
then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"MARGIN ADJUSTMENT DATE" means the date falling six Months following the
first Utilisation Date.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition or business of either the Company or the Group taken
as a whole and (b) on the ability of the Company or the Obligors taken as
a whole to perform and comply with their obligations under this Agreement
and any other Finance Documents to which they are respectively party.
-9-
"MATERIAL SUBSIDIARY" means, at any time, any Consolidated Subsidiary of
the Company which is named in the list of Subsidiaries set out in Schedule
13 (Material Subsidiaries) and, following the date of delivery of the
Company's annual audited consolidated financial statements pursuant to
Clause 19.1(a), any Consolidated Subsidiary of the Company whose net
turnover (excluding turnover arising from intra-group transactions) is
equal to or greater than 5 per cent. (5%) of the consolidated net turnover
of the Group or whose net result (as set out in its relevant annual
audited financial statements) for any of the last three financial years
was equal to or greater than 5 per cent. (5%) of the Net Result of the
Group for the corresponding financial year, such determination being made
by reference to the most recent annual financial statements of that
Consolidated Subsidiary, consolidated where applicable, used for the
purpose of the most recent annual audited consolidated financial
statements of the Company, as certified on the first and each subsequent
date of delivery of the Company's annual audited consolidated financial
statements for the time being of the Company and provided that (i) a
joint-venture company whose voting rights are held equally or in almost
equal proportion by the Company and another entity which is not a member
of the Group shall constitute a Material Subsidiary only if it
cumulatively exceeds both thresholds set out above in respect of net
turnover and net result and (ii) all Material Subsidiaries together with
the Company shall represent in aggregate not less than 75 per cent. or
more of the consolidated net turnover or Net Result of the Group.
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end
if there is one, or if there is not, on the immediately preceding
Business Day;
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in
the calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Services (or any successor in title of
similar standing).
"NET RESULT" means the resultat net de l'ensemble consolide as set out in
the Company's Original Financial Statements.
"OBLIGOR" means a Borrower or the Guarantor.
"OFFER" means the Original Offer and, as the case may be, the Additional
Offer and/or the Squeeze-Out Offer.
"OPTIONAL CURRENCY" means US dollars, Sterling and Japanese Yen.
-10-
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Company, its audited consolidated financial
statements together with its audited financial statements for the
financial year ended 31 December 2002.
(b) in relation to each Additional Borrower, its latest audited
financial statements together with its latest audited consolidated
financial statements (if any) available at the date of its
accession.
"ORIGINAL OFFER" means the offer for all of the Shares of Target filed by
the Company on the Announcement Date, as amended pursuant to the Increased
Offer (and as may be further amended in accordance with Clause 21.8
(Offer) and includes any other increased offer (surenchere) made in
accordance with such Clause 21.8 (Offer)).
"ORIGINAL OFFER RESULT NOTICE" means a notice published by the AMF of the
final outcome of the Original Offer (avis de resultat) specifying (amongst
other things) whether the Original Offer has been successful and the
number of Shares that have been tendered to the Offer by their holders and
which are to be acquired by the Company pursuant to that Original Offer.
"ORIGINAL OFFER SETTLEMENT DATE" means the date on which an Acquisition
Payment is to be made in respect of the Original Offer.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to Economic and
Monetary Union.
"PARTY" means a party to this Agreement.
"PRESENTING BANK" means, in relation to the Offer, BNP Paribas as banque
presentatrice providing the guarantee referred to in article 5-1-4 of the
Reglement General du CMF.
"QUALIFYING LENDER" has the meaning given to it in Clause 13 (Tax gross-up
and indemnities).
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day of
that period;
(b) (if the currency is sterling), the first day of that period; or
(c) (for any other currency) two Business Days before the first day of
that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading
banks in the Relevant Interbank Market on more than one day, the Quotation
Day will be the last of those days).
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"REFERENCE BANKS" means, in relation to EURIBOR, the principal Paris
offices of BNP Paribas, ABN AMRO and Royal Bank of Scotland. and, in
relation to LIBOR, the principal office in London of BNP Paribas, ABN AMRO
and Royal Bank of Scotland or such other banks as may be appointed by the
Agent in consultation with the Company.
"RELEVANT INTERBANK MARKET" means in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clause 18 other than those set out in Clauses 18.4 (Power and authority),
18.10 (No Misleading information), 18.11 (Financial Statements).
"RESERVATIONS" means any general principles of French law limiting rights
and obligations arising under any agreement which are specifically
referred to in the legal opinion to be delivered by Freshfields Bruckhaus
▇▇▇▇▇▇▇▇ to the Finance Parties.
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter).
"ROLLOVER LOAN" means one or more Facility C Loans:
(a) made or to be made on the same day that a maturing Facility C Loan
is due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Facility C Loan;
(c) in the same currency as the maturing Facility C Loan (unless it
arose as a result of the operation of Clause 6.2 (Unavailability of
a currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility C Loan.
"SCREEN RATE" means:
(a) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant
period; and
(b) in relation, to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Agent may specify
another page or service displaying the appropriate rate after consultation
with the Company and the Lenders.
"SECOND EXTENSION OPTION" means the option available to the Company to
request pursuant to clause 7.1(c) that the date on which all Facility A
Loans shall be repaid in full be extended until the Facility A Second
Extended Final Maturity Date.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
-12-
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 10
(Interest Periods) in relation to a Facility A and Facility B.
"SETTLEMENT ACCOUNT" means the account confirmed by the Presenting Bank to
the Agent in the relevant Utilisation Request as being the account into
which an Acquisition Payment is to be made.
"SETTLEMENT DATE" means a date on which an Acquisition Payment is to be
made.
"SHARES" means all the issued shares of Target (including any shares in
Target issued or to be issued whilst an Offer remains open for
acceptance).
"S&P" means Standard & Poors Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Inc (or any successor in title of similar standing).
"SPECIFIED TIME" means a time determined in accordance with Schedule 11
(Timetables).
"SQUEEZE-OUT OFFER" means any offre publique de retrait followed by an
offre publique de retrait obligatoire which might be made by the Company
for all of the then outstanding Shares of the Target, following the
completion of the Original Offer, or as the case may be, the Additional
Offer.
"SQUEEZE-OUT OFFER ACQUISITION PAYMENT" means a payment of the amount of
cash consideration required to be paid by or on behalf of the Company
under the Squeeze-Out Offer on a Squeeze-Out Settlement Date in respect of
the Shares tendered to the Squeeze-Out Offer.
"SQUEEZE-OUT SETTLEMENT DATE" means a date on which a Squeeze-Out
Acquisition Payment is to be made.
"SUBSIDIARY" means, in relation to any company, another company which is
controlled by it within the meaning of article L.233-3 of the French Code
de Commerce.
"SYNDICATION DATE" means the date falling on the earlier of (i) the date
upon which the Mandated Lead Arrangers notify the Company that the
syndication of the Facility has been completed or (ii) 31 December 2004.
"TARGET" means Aventis SA, a French company whose registered office is at
▇▇ ▇▇▇▇▇▇ ▇▇ ▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, registered under identification
number ▇▇▇ ▇▇▇ ▇▇▇ RCS Strasbourg.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TARGET GROUP" means Target and its Subsidiaries from time to time.
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature imposed or collected by any country or State or by any
local, national or
-13-
supranational body, authority or organisation (including any penalty or
interest payable in connection with any failure to pay or any delay in
paying any of the same).
"TOTAL" means Total SA, a French company whose registered office is at ▇
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ Defense 6, 92400 Courbevoie, registered under
identification number 542 051 180 RCS Nanterre.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments, the Total Facility B Commitments and the Total Facility C
Commitments, being EUR 16,000,000,000 at the date of this Agreement.
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being EUR 5,000,000,000 at the date of this Agreement.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments, being EUR 5,500,000,000 at the date of this Agreement.
"TOTAL FACILITY C COMMITMENTS" means the aggregate of the Facility C
Commitments, being EUR 5,500,000,000 at the date of this Agreement.
"TRANSFER AGREEMENT" means an agreement substantially in the form set out
in Schedule 5 (Form of Transfer Agreement) or any other form agreed
between the Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Agreement; and
(b) the date on which the Agent executes the Transfer Agreement.
"UNPAID SUM" means any sum due and payable but unpaid by a Borrower under
the Finance Documents.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in any of the forms set
out in Part I of Schedule 3 (Requests).
"VAT" means value added tax.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this
Agreement to:
(i) the "AGENT", any "MANDATED LEAD ARRANGER", any "FINANCE
PARTY", any "LENDER", any "OBLIGOR" or any "PARTY" shall be
construed so as to include its successors in title, permitted
assigns and permitted transferees;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
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(iii) "CORPORATE RECONSTRUCTION" includes in relation to any company
any contribution of part of its business in consideration of
shares (apport partiel d'actifs) and any demerger (scission)
implemented in accordance with articles L.236-1 to L.236-24 of
the French Code de Commerce;
(iv) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(v) "GROSS NEGLIGENCE" means "faute lourde";
(vi) a "GUARANTEE" includes any "cautionnement", "aval" and any
"garantie" which is independent from the debt to which it
relates;
(vii) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(viii) "MERGER" includes any fusion implemented in accordance with
articles L.236-1 to L.236-24 of the French Code de Commerce;
(ix) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any grouping
(whether or not having separate legal personality) or two or
more of the foregoing;
(x) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(xi) a "SECURITY INTEREST" includes any type of security (surete
reelle) and transfer by way of security;
(xii) "SUCCESSFUL" means in relation to the Original Offer that the
conditions relating to such offer have been met (including the
condition relating to the acceptance of the Original Offer by
holders of Shares representing a minimum of 50% of the share
capital of Target) and that it will have a "suite positive"
within the meaning of article 5-2-3 of the Reglement General
du CMF;
(xiii) "TRUSTEE, FIDUCIARY AND FIDUCIARY DUTY" has in each case the
meaning given to such term under any applicable law;
(xiv) "WILFUL MISCONDUCT" means "dol";
(xv) a provision of law is a reference to that provision as amended
or re-enacted; and
(xvi) unless a contrary indication appears, a time of day is a
reference to Paris time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
-15-
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document
or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "CONTINUING" if it has
not been remedied or waived and an Event of Default is "CONTINUING"
if it has not been waived.
-16-
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available:
(a) to the Company only, a Euro term loan facility in an aggregate
maximum amount equal to the Total Facility A Commitments;
(b) to the Company only, a Euro term loan facility in an aggregate
maximum amount equal to the Total Facility B Commitments; and
(c) to the Company and the Additional Borrowers (subject to provisions
of Clause 24.2 (Additional Borrowers)), a multicurrency revolving
loan facility in an aggregate maximum amount equal to the Total
Facility C Commitments.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents
are several (conjointes et non solidaires). Failure by a Finance
Party to perform its obligations under the Finance Documents does
not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of
any other Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from a
Borrower shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 PURPOSE
(a) The Company shall apply all amounts borrowed by it under Facility A
and Facility B towards the financing of the Acquisition Payment.
(b) The Company shall apply all amounts borrowed by it under Facility C
towards:
(i) the financing of the Acquisition Payment;
(ii) the financing of the reasonable fees, costs and expenses
incurred by it in connection with the Offer;
(iii) the financing of the general corporate purpose of the Group;
(iv) the refinancing of existing indebtedness of Target; or,
-17-
(v) any other purpose which may be agreed from time to time
between the Company and the Majority Lenders.
(c) Each Additional Borrower shall apply all amounts borrowed by it
under Facility C towards:
(i) the financing of its general corporate purpose; and
(ii) the refinancing of its existing indebtedness.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
(a) No Utilisation Request may be delivered unless the Agent has
received all of the documents and other evidence listed in Part I of
Schedule 2 (Conditions precedent to signing) in form and substance
satisfactory to the Agent. The Agent shall notify the Company and
the Lenders promptly upon being so satisfied.
(b) No Utilisation shall be made under any Facility unless the Original
Offer is successful.
4.2 CONDITIONS PRECEDENT TO UTILISATION UNDER FACILITY A AND FACILITY B
(a) On each Original Offer Settlement Date, no Utilisation shall be made
under Facility A or Facility B unless the Agent has received all of
the documents and other evidence listed in Section 1 of Part II of
Schedule 2 (Conditions precedent to Utilisation on each Original
Settlement Date) in form and substance satisfactory to the Agent.
The Agent shall notify the Company and the Lenders promptly upon
being so satisfied.
(b) On each Additional Offer Settlement Date (if any), no Utilisation
shall be made under Facility A or Facility B unless the Agent has
received all of the documents and other evidence listed in Section 2
of Part II of Schedule 2 (Conditions precedent to Utilisation on
each Additional Offer Settlement Date) in form and substance
satisfactory to the Agent. The Agent shall notify the Company and
the Lenders promptly upon being so satisfied.
(c) On each Squeeze-Out Offer Settlement Date (if any), no Utilisation
shall be made under Facility A or Facility B unless the Agent has
received all of the documents and other evidence listed in Section 3
of Part II of Schedule 2 (Conditions precedent to Utilisation on
each Squeeze-Out Offer Settlement Date) in form and substance
satisfactory to the Agent. The Agent shall notify the Company and
the Lenders promptly upon being so satisfied.
(d) Following the expiry of the Certain Funds Period, no Utilisation
shall be made under Facility A or Facility B if:
(i) an Event of Default or a Default is continuing or would result
from the proposed Loan;
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(ii) any Repeating Representations to be made by the Company is
untrue in any material respects.
4.3 CONDITIONS PRECEDENT TO UTILISATION UNDER FACILITY C FOR THE PURPOSE OF
FINANCING AN ACQUISITION PAYMENT
(a) No Utilisation shall be made under Facility C for the purpose of
financing an Acquisition Payment unless and until Facility A and
Facility B have been drawn in full.
(b) On each Original Offer Settlement Date, no Utilisation shall be made
under Facility C for the purpose of financing an Acquisition Payment
unless the Agent has received all of the documents and other
evidence listed in Section 1 of Part II of Schedule 2 (Conditions
precedent to Utilisation on each Original Settlement Date) in form
and substance satisfactory to the Agent. The Agent shall notify the
Company and the Lenders promptly upon being so satisfied.
(c) On each Additional Offer Settlement Date (if any), no Utilisation
shall be made under Facility C for the purpose of financing an
Acquisition Payment unless the Agent has received all of the
documents and other evidence listed in Section 2 of Part II of
Schedule 2 (Conditions precedent to Utilisation on each Additional
Offer Settlement Date) in form and substance satisfactory to the
Agent. The Agent shall notify the Company and the Lenders promptly
upon being so satisfied.
(d) On each Squeeze-Out Offer Settlement Date (if any), no Utilisation
shall be made under Facility C for the purpose of financing a
Squeeze-Out Acquisition Payment unless the Agent has received all of
the documents and other evidence listed in Section 3 of Part II of
Schedule 2 (Conditions precedent to Utilisation on each Squeeze-Out
Offer Settlement Date) in form and substance satisfactory to the
Agent.
(e) Following the expiry of the Certain Funds Period, no Utilisation
shall be made under Facility C for the purposes of financing an
Acquisition Payment if:
(i) an Event of Default or a Default is continuing or would result
from the proposed Facility C Loan;
(ii) any Repeating Representations to be made by each Obligor is
untrue in any material respects.
4.4 CONDITIONS PRECEDENT TO UTILISATION UNDER FACILITY C FOR OTHER PURPOSES
THAN FINANCING AN ACQUISITION PAYMENT
(a) No Utilisation shall be made under Facility C for any other purpose
than the financing of an Acquisition Payment prior to the day on
which the first Settlement Date occurs.
(b) No Utilisation shall be made under Facility C for any other purpose
than the financing of an Acquisition Payment if:
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(i) an Event of Default or a Default is continuing or would result
from the proposed Facility C Loan;
(ii) any Repeating Representations to be made by each Obligor is
untrue in any material respects.
4.5 CERTAIN FUNDS PERIOD
(a) Notwithstanding any term of this Agreement, during the Certain Funds
Period, the Lenders shall not be entitled to:
(i) refuse to participate in or make available any Acquisition
Loan;
(ii) cancel a Commitment relating to any Acquisition Loan; or
(iii) exercise any right of rescission or similar right or remedy
which it may have in relation to any Acquisition Loan,
except as provided below in this Clause 4.5.
(b) Paragraph (a) does not apply if, in the opinion of the Majority
Lenders:
(i) a Major Representation is not correct or will not be correct
immediately after the relevant Acquisition Loan is made; or
(ii) a Major Default is continuing or will result from the making
of the relevant Acquisition Loan.
(c) Paragraph (a) does not apply if:
(i) in respect of a Facility A Loan or a Facility B Loan, the
Company has not delivered all of the documents and other
evidence required to be delivered pursuant to clause 4.2
(Conditions Precedent to Utilisation under Facility A and
Facility B) in form and substance satisfactory to the Agent;
(ii) in respect of a Facility C Acquisition Loan, the conditions
precedent set out in clause 4.3(a), 4.3(b), 4.3(c) and 4.3(d)
have not been met.
(d) Nothing in this Clause 4.5 will affect the right of any Lender to
refuse to participate in or make available any Acquisition Loan or
to cancel a Commitment relating thereto if it is unlawful for such
Lender to perform any of its obligations under the Finance
Documents.
(e) Nothing in this Clause 4.5 will affect the rights of any Finance
Party in respect of any Default which is continuing upon expiry of
the Certain Funds Period irrespective of whether that Default
occurred during the Certain Funds Period or not.
(f) In any case, the Company shall comply with the requirements set out
in Clause 5 (Utilisation).
(g) In this Clause 4.5:
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"CERTAIN FUNDS PERIOD" means the period beginning on the date of this
Agreement and ending 11 Months following the Announcement Date.
"MAJOR BREACH" means a breach of:
(i) Clause 21.2 (Compliance with laws);
(ii) Clause 21.3 (Negative pledge) but excluding any breach by a
member of the Target Group;
(iii) Clause 21.4 (Disposals);
(iv) Clause 21.8 (Offer),
provided that in respect of paragraph (i), (ii) and (iii) above, such
breach shall have or is reasonably likely to have a Material Adverse
Effect.
"MAJOR DEFAULT" means any of the following Events of Default:
(i) Clause 22.1 (Non-payment);
(ii) Clause 22.3 (Other obligations) but only insofar as it
constitutes a Major Breach;
(iii) Clause 22.4 (Misrepresentation) but only insofar as it relates
to a Major Representation;
(iv) Clause 22.5 (Cross-Default) but only if it relates to a
payment default under the relevant Financial Indebtedness if
in excess of EUR 200,000,000 and incurred by a member of the
Group (excluding for the avoidance of doubt any member of the
Target Group) and the creditor of such Financial Indebtedness
has notified its intent to accelerate such Financial
Indebtedness; or,
(v) Clauses 22.6 (Insolvency) and 22.7 (Insolvency proceedings)
but only insofar as it relates to the Company, any of its
Material Subsidiaries or Target.
"MAJOR REPRESENTATION" means any of the following representations
contained in this Agreement:
(i) Clause 18.1 (Status);
(ii) Clause 18.2 (Binding Obligations);
(iii) Clause 18.3 (Non-contravention with other obligations);
(iv) Clause 18.4 (Power and authority); or
(v) Clause 18.11 (a) and (b) (Financial Statements).
4.6 MAXIMUM NUMBER OF LOANS
(a) The Presenting Bank may deliver as many Utilisation Requests as
necessary in relation to Acquisition Loans for the purpose of
achieving payment of
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Acquisition Payment in accordance with timetables and prescriptions
set out by any relevant market authority.
(b) A Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation 10 or more Facility C Loans (other than
Facility C Acquisition Loans) would be outstanding.
(c) Any Loan made by a single Lender under Clause 6.2 (Unavailability of
a currency) shall not be taken into account in this Clause 4.6.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 UTILISATION UNDER FACILITY A AND FACILITY B
(a) Utilisation shall be made under Facility A and Facility B on a
Settlement Date only and shall be made under each such Facility on a
prorata basis (if such Utilisation is made prior to the Facility A
Final Maturity Date).
(b) Facility A or Facility B may be utilised by delivery to the Agent,
by no later than 3 Business Days prior to the relevant Settlement
Date, of a duly completed Utilisation Request issued by the
Presenting Bank.
(c) Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Settlement Date;
(iii) the currency is the Base Currency;
(iv) the amount of the Utilisation is no greater than the Available
Facility;
(v) the proposed Interest Period complies with Clause 10 (Interest
Periods); and
(vi) it indicates the Settlement Account to which the relevant Loan
shall be paid.
(d) Only one Loan may be requested in each Utilisation Request.
(e) The amount of Utilisations made on a Settlement Date under Facility
A and Facility B (to which shall be added, as the case may be, the
amount of the Utilisation made in accordance with provisions of
article 5.2 on the same date under Facility C) shall be equal to the
amount of the Acquisition Payment to be made on such Settlement
Date.
5.2 UTILISATION UNDER FACILITY C FOR THE PURPOSE OF FINANCING AN ACQUISITION
PAYMENT
(a) Utilisation shall be made under Facility C for the purpose of
financing an Acquisition Payment on a Settlement Date only.
(b) Facility C may be utilised for the purpose of financing an
Acquistion Payment by delivery to the Agent, by no later than 3
Business Days prior to the relevant Settlement Date, of a duly
completed Utilisation Request issued by the Presenting Bank.
(c) Each Utilisation Request under Facility C issued for the purpose of
financing an Acquisition Payment is irrevocable and will not be
regarded as having been duly completed unless:
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(i) the proposed Utilisation Date is a Settlement Date;
(ii) the currency is the Base Currency;
(iii) the amount of the Utilisation is no greater than the Available
Facility;
(iv) the proposed Interest Period complies with Clause 10 (Interest
Periods).
(v) it indicates the Settlement Account to which the relevant
Facility C Acquisition Loan shall be paid.
(d) Only one Facility C Acquisition Loan may be requested in each
Utilisation Request.
5.3 UTILISATION UNDER FACILITY C FOR OTHER PURPOSES THAN FINANCING AN
ACQUISITION PAYMENT
(a) A Borrower may utilise Facility C for any other purposes than
financing an Acquisition Payment by delivery to the Agent of a duly
completed Utilisation Request no later than 3 Business Days prior to
the relevant Utilisation Date.
(b) No Utilisation shall be made under Facility C for any other purposes
than financing an Acquisition Payment prior to the day on which the
first Settlement Date occurs.
(c) Each Utilisation Request issued for other purposes than financing an
Acquisition Payment is irrevocable and will not be regarded as
having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to Facility C;
(ii) the currency of the Utilisation comply with Clause 5.3.(e);
(iii) the amount of the Utilisation comply with Clause 5.3.(f); and
(iv) the proposed Interest Period complies with Clause 10 (Interest
Periods).
(d) Only one Loan may be requested in each Utilisation Request.
(e) The currency specified in a Utilisation Request must be the Base
Currency or an Optional Currency.
(f) The amount of the proposed Facility C Loan must be in a minimum Base
Currency Amount of EUR 100,000,000 (and, in integral multiple Base
Currency Amounts of EUR 20,000,000) or, if less, the Available
Facility.
(g) Unless otherwise agreed in writing by the Majority Lenders, no
Utilisation by an Additional Borrower may take place if as a result
of such Utilisation, the aggregate Facility C Loans in respect of
such Additional Borrower would exceed (i) for Target, EUR
5,500,000,000, and (ii) for any other
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Additional Borrower, the borrowing limit agreed by the Majority
Lenders at the time of the accession to this Agreement of such
Additional Borrower as provided for in Clause 24.2 (Additional
Borrowers).
5.4 UTILISATION REQUEST BY THE PRESENTING BANK
In relation to the financing of any Acquisition Payment and each time any
such Acquisition Payment is requested to be paid in accordance with
applicable timetables and prescriptions set out by any relevant market
authority, Utilisation Requests shall be made solely by the Presenting
Bank in accordance with Clauses 5.1 (Utilisation under Facility A and
Facility B) and 5.2 (Utilisation under Facility C for the purpose of
financing an Acquisition Payment).
To that effect and in consideration of the Presenting Bank providing the
guarantee referred to in article 5-1-4 of the Reglement General du CMF,
the Company hereby irrevocably waives any rights to make any Utilisation
for the purpose of financing any Acquisition Payment and delegates all
such rights to the Presenting Bank which accepts such delegation and
agrees to be a party to this Agreement for this sole purpose and, as the
case may be, for the purposes of paragraph (b) of Clause 8.3 (Voluntary
Cancellation).
The Company agrees that delivery of an Utilisation Request by the
Presenting Bank shall constitute a confirmation by the Company that each
applicable condition to be satisfied on the date of this Utilisation
Request pursuant to Clauses 4.1 (Initial conditions precedent) to 4.3
(Conditions precedent to Utilisation under Facility C for the purpose of
financing an Acquisition Payment) is satisfied on such date.
In the event that the Presenting Bank does no longer act as banque
presentatrice under the Additional Offer and/or, as the case may be, under
the Squeeze-Out Offer, no Utilisation shall be made for the purpose of
financing an Acquisition Payment under the Additional Offer and/or, as the
case may be, under the Squeeze-Out Offer until and unless the credit
institution acting as banque presentatrice under the Additional Offer
and/or, as the case may be, under the Squeeze-Out Offer accedes to this
Agreement and accepts to be bound by the provisions of this Clause 5
(Utilisation).
5.5 LENDERS' PARTICIPATION
(a) If the applicable conditions set out in this Agreement have been
met, each Lender shall make its participation in each Loan available
by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be equal
to the proportion borne by its Available Commitment to the Available
Facility immediately prior to making the Loan.
(c) The Agent shall determine the Base Currency Amount of each Facility
C Loan which is to be made in one Optional Currency and shall notify
each Lender of the amount, currency and the Base Currency Amount of
each Loan and the amount of its participation in that Loan, in each
case by the Specified Time.
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6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Facility C Loan (other than a Facility C Acquisition Loan)
in a Utilisation Request.
6.2 UNAVAILABILITY OF A CURRENCY
(a) If before the Specified Time on any Quotation Day:
(i) a Lender notifies the Agent that the Optional Currency
requested is not readily available to it in the amount
required; or
(ii) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the Optional Currency
would contravene a law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect
by the Specified Time on that day. In this event, any Lender that
gives notice pursuant to this Clause 6.2(a) will be required to
participate in the Loan in the Base Currency (in an amount equal to
that Lender's proportion of the Base Currency Amount or, in respect
of a Rollover Loan, an amount equal to that Lender's proportion of
the Base Currency Amount of the Rollover Loan that is due to be
made) and its participation will be treated as a separate Loan
denominated in the Base Currency during that Interest Period.
(b) Paragraph (a)(i) of this Clause 6.2 shall not apply in relation to
Sterling or US Dollars.
6.3 AGENT'S CALCULATIONS
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.5 (Lenders' participation).
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF FACILITY A LOANS
(a) The Company must repay the Facility A Loans in full on the Facility
A Original Final Maturity Date (subject to the exercise of the First
Extension Option in accordance with the provisions of paragraph (b)
below and, as the case may be, of the Second Extension Option in
accordance with the provisions of paragraph (c) below).
(b) The Company shall be entitled at any time between the date falling
60 days and the date falling 30 days before the Facility A Original
Final Maturity Date to request that the date on which the Facility A
Loans shall be repaid in full shall be the Facility A First Extended
Final Maturity Date by giving a notice in writing to the Agent to
that effect.
The First Extension Option shall be effective on the date of the
Facility A Original Final Maturity Date provided that on such date:
(i) no Event of Default or Default is continuing or would result
from the exercise of the First Extension Option;
(ii) the Repeating Representations to be made by the Company are
true in all material respects; and
(iii) the Company has paid the extension fee referred to in
paragraph (a) of Clause 12.4 (Extension Fee).
(c) To the extent that the Company has exercised the First Extension
Option, The Company shall be entitled at any time between the date
falling 60 days and the date falling 30 days before the Facility A
First Extended Final Maturity Date to request that the date on which
the Facility A Loans shall be repaid in full shall be the Facility A
Second Extended Final Maturity Date by giving a notice in writing to
the Agent to that effect.
The Second Extension Option shall be effective on the date of the
Facility A First Extended Final Maturity Date provided that on such
date:
(i) no Event of Default or Default is continuing or would result
from the exercise of the Second Extension Option;
(ii) the Repeating Representations to be made by the Company are
true in all material respects; and
(iii) the Company has paid the extension fee referred to in
paragraph (b) of Clause 12.4 (Extension Fee).
(d) The Company may not reborrow any part of Facility A which is repaid.
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7.2 REPAYMENT OF FACILITY B LOANS
(a) The Company must repay the Facility B Loans in full on the Facility
B Final Maturity Date.
(b) The Company may not reborrow any part of Facility B which is repaid.
7.3 REPAYMENT OF FACILITY C LOANS
(a) Each Borrower which has drawn a Facility C Loan shall repay that
Facility C Loan on the last day of its Interest Period.
(b) Subject to the other terms of this Agreement, any amount repaid
under paragraph (a) may be reborrowed.
(c) No Borrower may reborrow any part of Facility C following the
Facility C Final Maturity Date.
8. PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the Loans
made to that Borrower on the last day of the Interest Period for
each Loan occurring after the Agent has notified the Company or, if
earlier, the date specified by the Lender in the notice delivered to
the Agent (being no earlier than the last day of any applicable
grace period permitted by law).
8.2 CHANGE OF CONTROL OF THE COMPANY
(a) If any person (other than L'Oreal or Total) or group of persons
acting in concert (other than a concert in which L'Oreal and/or
Total have a majority stake) acquires more than 50% of the voting
rights of the Company:
(i) the Company shall promptly notify the Agent upon becoming
aware of that event and shall consult with the Lenders for a
60 days period commencing on the date of the notification so
as to keep their respective Commitment outstanding following
the occurrence of that event;
(ii) at the end of such 60 days period, each Lender, by not less
than 15 days notice to the Company, may cancel its
participation in the Facilities and declare all its
participations in outstanding Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents immediately due and payable to it,
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whereupon the participation of such Lenders in the Facilities
will be cancelled and all such outstanding amounts will become
immediately due and payable.
(b) For the purpose of paragraph (a) above "ACTING IN CONCERT" has the
meaning given in article L.233-10 of the French Code de Commerce.
8.3 VOLUNTARY CANCELLATION
(a) The Company may, if it gives the Agent not less than 10 Business
Days' (or such shorter period as the Majority Lenders may agree)
prior notice, cancel the whole or any part (being a minimum amount
of EUR 100,000,000) of an Available Facility. Any cancellation under
this Clause 8.3, if in respect of either of Facility A or Facility
B, shall be made under both Facility A and Facility B on a prorata
basis as long as there remains any Available Commitment under either
Facility. Any cancellation under this Clause 8.3 shall reduce the
Commitments of the Lenders rateably under the Facility concerned.
(b) No cancellation shall be requested by the Company prior to the
expiry of the Certain Funds Period without the prior written consent
of the Presenting Bank. Notwithstanding paragraph (a) above, any
such cancellation shall take effect immediately upon notice to the
Agent.
8.4 MANDATORY CANCELLATION
All Commitments shall be automatically cancelled if:
(a) the Increased Offer and the note d'information relating thereto is
not filed with the AMF within 10 Business Days following the signing
of this Agreement (unless otherwise agreed by the Lenders);
(b) at any time following the date hereof, the Company exercises any
right it may have under any applicable regulation to withdraw the
Original Offer;
(c) at any time following the date hereof, an Original Offer Result
Notice is issued evidencing that the Original Offer has not been
successful;
(d) no Original Offer Result Notice has been issued by the AMF prior to
the end of a 11 Month period following the Announcement Date.
8.5 VOLUNTARY PREPAYMENT
(a) The Company may, if it gives the Agent not less than 10 Business
Days' (or such shorter period as the Majority Lenders may agree)
prior notice, prepay the whole or any part of the Facilities
provided that amounts voluntary prepaid shall be applied in priority
(i) towards the discharge of sums due under Facility A and Facility
B on a prorata basis as long as any sums remain outstanding under
both Facility A and Facility B or (ii) if no sums remain outstanding
under Facility A, towards the discharge of sums due under Facility B
(as long as any sums remains outstanding under Facility B). No
Amounts shall be prepaid under Facility C unless and until no
amounts remain outstanding under Facility A and Facility B.
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(b) Each Facility shall be cancelled by an amount equal to the amount
prepaid under such Facility.
8.6 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 13.2 (Tax gross-up) or
under an equivalent provision of any Finance Document;
(ii) any Lender claims indemnification from the Company under
Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs);
or
(iii) the Additional Cost Rate calculated for any Lender in
accordance with Schedule 4 (Mandatory Cost Formulae) is
greater than zero,
the Company may, whilst (in the case of paragraphs (i) and (ii)
above) the circumstance giving rise to the requirement or
indemnification continues or (in the case of paragraph (iii) above)
that Additional Cost Rate is greater than zero, give the Agent
notice of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender's participation in
the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Company
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Company in that notice), each Borrower to which a
Loan is outstanding shall repay that Lender's participation in that
Loan.
8.7 MANDATORY PREPAYMENT IN RELATION TO A SINGLE LENDER
If it becomes unlawful for a Borrower to perform any of its obligations to
any Lender under paragraph (c) of Clause 13.2 (Tax gross-up) or under an
equivalent provision of any Finance Document,
(a) the Company shall promptly notify the Agent upon becoming aware of
that event;
(b) that Borrower shall repay that Lender's participation in the Loans
made to that Borrower on the last day of each Interest Period which
ends after the Company has given notice under paragraph (a) above
or, if earlier, the date specified by that Lender in a notice
delivered to the Agent (being no earlier than the last day of any
applicable grace period permitted by law).
8.8 MANDATORY PREPAYMENT BY AN ADDITIONAL BORROWER
Any amount borrowed by an Additional Borrower shall be prepaid immediately
upon such Additional Borrower ceasing to be a member of the Group or if it
is or becomes unlawful for the Guarantor to perform any of its obligations
under the related Guarantee.
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8.9 MANDATORY PREPAYMENT DUE TO UNLAWFULNESS
Any amount borrowed by a Borrower shall be prepaid immediately if it is or
becomes unlawful for that Borrower to perform any of its obligations under
any Finance Documents.
8.10 MANDATORY PREPAYMENT AND CANCELLATION FROM NET CASH PROCEEDS
(a) The Company (for itself or, as the case may be, on behalf of any
Additional Borrower) shall, subject to paragraph (b), (c), (f), (g),
and (h) below, prepay and cancel the Facilities by an amount equal
to the amount of Net Cash Proceeds received by or for the account of
any member of the Group.
(b) The obligation to prepay pursuant to this Clause 8.10 an amount
equal to Net Disposal Proceeds received by any member of the Group
shall apply only in respect of Net Disposal Proceeds received in any
given financial year in aggregate in excess of EUR 2,000,000,000.
Such prepayment shall be made on the last day of the Interest Period
which expires immediately after 30 June each following year,
starting from (and including) 30 June 2005.
(c) Any prepayment pursuant to this Clause 8.10 in respect of Net
Securitisation Program Proceeds shall be made on the last day of the
Interest Period which expires immediately after 30 June each
following year, starting from (and including) 30 June 2005.
(d) Amounts to be prepaid pursuant to this Clause 8.10 shall be applied
in priority towards (i) the prepayment of Facility A and Facility B
on a prorata basis as long as any sums remain outstanding under both
Facility A and Facility B and (ii) if no sum remains outstanding
under Facility A, toward the prepayment of Facility B as long as any
sums remain outstanding under Facility B. In both cases, if the
amount to be prepaid exceeds the amounts outstanding under Facility
A and Facility B, such excess shall be applied towards the
prepayment of Facility C (up to the then outstanding amount under
Facility C) and Commitment relating to Facility C shall be cancelled
for an amount equal to such excess.
If at the date of the prepayment to be made pursuant to this Clause
8.10, no amounts remains outstanding under Facility A and Facility
B, the amounts to be prepaid shall be applied entirely towards the
prepayment of Facility C (up to the then outstanding amount under
Facility C) and Commitment relating to Facility C shall be cancelled
for an amount equal to such prepayment.
(e) The Company shall promptly and in any event within two Business Days
notify the Agent forthwith of receipt by any member of the Group of
any Net Disposal Proceeds.
(f) Prepayments shall not be required to be made pursuant to this Clause
8.10, if and to the extent such prepayments cannot be funded
otherwise than in breach of legal provisions regarding corporate
interest, financial assistance and fiduciary duties of directors, if
and to the extent that proceeds need to be upstreamed to the Company
(unless the relevant Net Cash Proceeds has been received by an
Additional Borrower which can use the said amount in
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prepayment of Loans made to it) by loan, cash transfer or dividend
payment, where such upstreaming cannot lawfully be done, it being
understood that in such case the Company shall make its best efforts
to ensure that, to the extent possible, the prohibition to such
upstreaming is overcome as soon as possible and that the
corresponding prepayment shall be made immediately when it can be
legally funded.
(g) If the Company notifies the Agent that, and establishes to the
Agent's reasonable satisfaction that (a) a prepayment pursuant to
this Clause 8.10 cannot be lawfully funded otherwise than by way of
an intra-group loan causing the application of any applicable "thin
capitalization rules" at the level of the relevant borrower and (b)
that the application of such "thin capitalization rules" would
result in an increase of the effective amount of tax payable by such
borrower (excluding for the avoidance of doubt, any reduction of any
tax losses of such borrower), then such prepayment shall not be
required to be made pursuant to this Clause 8.10. The prepayment
shall be made immediately when it can be funded otherwise than by
way of an intra-group loan or when it can be funded otherwise than
by way of an intra-group loan causing the application of any
relevant "thin capitalization rules" in the conditions described
above.
(h) If the Company notifies the Agent that, and establishes to the
Agent's reasonable satisfaction that (a) a prepayment pursuant to
this Clause 8.10 cannot be lawfully funded otherwise than by way of
a distribution of dividends and that (b) such distribution of
dividends cannot be made without triggering the effective payment,
by the person making the distribution, of a Precompte (other than a
Precompte which may be refunded on the basis of a double taxation
agreement), then such prepayment shall not be required to be made
pursuant to this Clause 8.10. The prepayment shall be made
immediately when it can be funded otherwise than by a distribution
of dividends or when it can be funded by way of distribution of
dividends without triggering the payment of Precompte in the
conditions described above.
(i) If the Company notifies the Agent that, and establishes to the
Agent's reasonable satisfaction that (a) a prepayment pursuant to
this Clause 8.10 cannot be lawfully funded otherwise than by way of
a distribution of dividends and/or reserves and that (b) such
distribution of dividends and/or reserves cannot be made without
triggering the effective payment, by the person making the
distribution, of the prelevement exceptionnel provided for by
article 95 of the French Loi de Finance for 2004, then such
prepayment shall not be required to be made prior to 1st January
2006 provided that such prepayment shall be made as soon as
practicable following such date.
(j) In this Clause,
"NET CASH PROCEEDS" means any Net Disposal Proceeds or Net
Securitisation Program Proceeds.
"NET DISPOSAL PROCEEDS" means, in relation to any disposal of any
asset (other than a disposal of current assets (actifs circulants)
made in the ordinary course of business or disposal of assets made
to the benefit of another member of the Group), any cash proceeds
(or in the case of
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consideration paid by way of an issue of debt, bond or equity
instrument delivered to the transferor, an equivalent amount
thereto) thereof from time to time that are to be received by or for
the account of any member of the Group net of:
(i) any tax liability arising from such disposal;
(ii) any reinvestment made out of such cash proceeds to the extent
that (a) such reinvestment is made no later than 30 June of
the year following the financial year during which such cash
proceeds have been received and (b) such reinvestment is made
in businesses, shares or other assets consistent with the
nature of business of the Company or the Group as carried on
at the date of this Agreement; and
(iii) reasonable commissions, fees and expenses payable by any
member of the Group in connection with such disposal (without
limitation, including pursuant to earn out provisions and
taking into account the amount of any proceeds received in
respect of repayment or disposal of any intra group loan).
but excluding:
(a) in the case of a disposal of a Subsidiary where liabilities to
third parties are assumed by other members of the Group as
part of the consideration for the sale of that Subsidiary,
such amount of the consideration received by the Group which
is attributable to that assumption;
(b) in the case of a disposal by a Subsidiary that is not a
wholly-owned Subsidiary, the pro rata share of such cash
proceeds attributable to the minority interests in that
Subsidiary; and
(c) in the case of a disposal effected by a Subsidiary, the
repayment of Financial Indebtedness related to the assets
subject to the disposal which are required to be repaid in
order to effect the disposal.
"NET SECURITISATION PROGRAM PROCEEDS" means, in relation to any
securitisation or trade receivables sale program entered into by any
member of the Group, the amount, if any, by which the aggregate
amounts utilised under such programs at the end of any financial
year exceeds the aggregate amounts utilised under such programs at
the end of the preceding financial year. It is understood that, in
respect of any such programs entered into by Target and its
Subsidiaries, and for the financial year in which the Company will
gain the effective control of Target, the Net Securitisation Program
Proceeds will include the amount, if any, by which the aggregate
amounts utilised under such programs at the end of the relevant
financial year exceeds the aggregate amounts utilised under such
programs on the date on which the Company gained the effective
control of Target. For the purposes of this Clause 8.10, the Company
undertakes to notify the Agent, forthwith upon gaining the effective
control of Target, of the aggregate amounts utilised under such
programs and shall notify the Agent no later than 31 January each
year of the aggregate amounts utilised under such programs at the
end of the preceding two financial years and of the corresponding
Net Securitisation Program Proceeds, if any.
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"PRECOMPTE" means the "precompte" as defined in article 223 sexies
of the French Code General des Impots, or any equivalent tax in any
jurisdiction or replacing the above provided in each case that such
tax is a final liability and is not refundable.
8.11 MANDATORY PREPAYMENT AND CANCELLATION FROM NET DEBT ISSUE PROCEEDS
(a) The Company shall, subject to paragraph (b) and (e) below, prepay
and cancel Facility A and Facility B by an amount equal to the
amount of Net Debt Issue Proceeds received by or for the account of
any member of the Group.
(b) The obligation to prepay pursuant to this Clause 8.11 an amount
equal to Net Debt Issue Proceeds received by any member of the Group
shall apply only in respect of Net Debt Issue Proceeds received in
aggregate in excess of EUR 1,000,000,000 following the date of this
Agreement and until amounts outstanding under Facility A and
Facility B are reduced to two thirds of the aggregate of the Total
Facility A Commitment and the Total Facility B Commitment at the
date of this Agreement.
(c) Amounts to be prepaid pursuant to this Clause 8.11 shall be applied
towards the prepayment of Facility A and Facility B on a prorata
basis as long as any sums remain outstanding under both Facility A
and Facility B.
(d) Any prepayment pursuant to this Clause 8.11 shall be made on the
last day of the Interest Period which expires immediately after the
date of receipt by any member of the Group of any Net Debt Issue
Proceeds.
(e) Paragraph (f), (g), (h) and (i) of Clause 8.10 (Mandatory Prepayment
and Cancellation from Net Cash Proceeds) shall apply mutatis
mutandis in respect of prepayment to be made pursuant to this Clause
8.11.
(f) In this Agreement:
"DEBT ISSUE" means any issue of bonds or notes (including
convertible bonds and other equity-linked debt instruments), debt
securities (excluding for the avoidance of doubt, billets de
tresorerie or commercial paper with a tenor of less than one year)
or other capital markets instruments of any kind by any member of
the Group whether to the public, one or more private places or
otherwise and whether or not listed on any stock exchange.
"NET DEBT ISSUE PROCEEDS" means, in relation to any Debt Issue, any
cash proceeds that are to be received by or for the account of any
member of the Group net of reasonable commissions, fees and expenses
payable by any member of the Group in connection with such Debt
Issue.
8.12 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 8 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon
which the relevant cancellation or prepayment is to be made and the
amount of that cancellation or prepayment.
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(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) No Borrower may reborrow any part of Facility A or Facility B which
is prepaid.
(d) The Borrowers shall not repay or prepay all or any part of the Loans
or cancel all or any part of the Commitments except at the times and
in the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 8 it shall promptly
forward a copy of that notice to either the Company or the affected
Lender, as appropriate.
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SECTION 5
COSTS OF UTILISATION
9. INTEREST
9.1 FACILITY A CALCULATION OF INTEREST
(a) The rate of interest on each Facility A Loan for each Interest
Period shall be the percentage rate per annum which is the aggregate
of the applicable:
(i) Facility A Margin;
(ii) EURIBOR; and
(iii) Mandatory Cost, if any.
(b) The Facility A Margin shall be equal to 0.40% in respect of each
Interest Period commencing prior to the Margin Adjustment Date.
(c) The Facility A Margin applicable to any Interest Period commencing
on or following the Margin Adjustment Date shall be equal to the
average of the percentage rates per annum set below opposite the
credit rating assigned respectively by S&P and ▇▇▇▇▇'▇ on the long
term unsecured and unsubordinated debt or on the Facility itself (as
agreed between the Company and the Mandated Lead Arrangers) of the
Company on the first day of such Interest Period:
RATINGS ASSIGNED BY S&P AND ▇▇▇▇▇'▇ MARGIN (%)
AA-/Aa3 or above 0.35
A+/A1 or A/A2 0.40
A-/A3 0.45
BBB+/Baa1 or below or no rating 0.525
9.2 FACILITY B CALCULATION OF INTEREST
(a) The rate of interest on each Facility B Loan for each Interest
Period shall be the percentage rate per annum which is the aggregate
of the applicable:
(i) Facility B Margin;
(ii) EURIBOR; and
(iii) Mandatory Cost, if any.
(b) The Facility B Margin shall be equal to 0.45% in respect of each
Interest Period commencing prior to the Margin Adjustment Date.
(c) The Facility B Margin applicable to any Interest Period commencing
on or following the Margin Adjustment Date shall be equal to the
average of the percentage rates per annum set below opposite the
credit rating assigned respectively by S&P and ▇▇▇▇▇'▇ on the long
term unsecured and
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unsubordinated debt or on the Facility itself (as agreed between the
Company and the Mandated Lead Arrangers) of the Company on the first
day of such Interest Period:
RATINGS ASSIGNED BY S&P AND ▇▇▇▇▇'▇ MARGIN (%)
AA-/Aa3 or above 0.40
A+/A1 or A/A2 0.45
A-/A3 0.50
BBB+/Baa1 or below or no rating 0.575
9.3 FACILITY C CALCULATION OF INTEREST
(a) The rate of interest on each Facility C Loan for each Interest
Period is the percentage rate per annum which is the aggregate of
the applicable:
(i) Facility C Margin;
(ii) EURIBOR or, in relation to any Loan in an Optional Currency,
LIBOR; and
(iii) Mandatory Cost, if any.
(b) The Facility C Margin shall be equal to 0.50% in respect of each
Interest Period commencing prior the Margin Adjustment Date.
(c) The Facility C Margin applicable to any Interest Period commencing
on or following the Margin Adjustment Date shall be equal to the
average of the percentage rates per annum set below opposite the
credit rating assigned respectively by S&P and ▇▇▇▇▇'▇ on the long
term unsecured and unsubordinated debt or on the Facility itself (as
agreed between the Company and the Mandated Lead Arrangers) of the
Company during such Interest Period:
RATINGS ASSIGNED BY S&P AND ▇▇▇▇▇'▇ MARGIN (%)
AA-/Aa3 or above 0.45
A+/A1 or A/A2 0.50
A-/A3 0.55
BBB+/Baa1 or below or no rating 0.625
9.4 GENERAL PROVISIONS REGARDING MARGIN ADJUSTMENTS
If there is a change of the credit rating assigned by S&P or ▇▇▇▇▇'▇
during an Interest Period, for the purpose of determining the applicable
rate of interest, such change shall take effect for each Loan on the next
Interest Period in respect thereto.
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9.5 ADJUSTMENT OF THE MARGIN UPON REPAYMENT AND CANCELLATION OF MORE THAN 50%
OF THE TOTAL COMMITMENT
Each of the applicable Facility A Margin, Facility B Margin and Facility C
Margin determined in accordance with the provisions of Clause 9.1 to 9.4
above shall be reduced by 0.05% per annum following the date on which more
than 50% of the Total Commitments as of the date of this Agreement has
been repaid and/or cancelled. Such change shall take effect for each Loan
on the next Interest Period in respect thereto.
9.6 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest on
that Loan on the last day of each Interest Period.
9.7 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue to the fullest
extent permitted by law on the overdue amount from the due date up
to the date of actual payment (both before and after judgment) at a
rate which, subject to paragraph (b) below, is 1% (one per cent.)
higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in
the currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 9.7 shall be immediately payable
by the Borrower on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which became
due on a day which was not the last day of an Interest Period
relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current
Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during
that first Interest Period shall be 1% (one per cent.) higher
than the rate which would have applied if the overdue amount
had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount only if, within the meaning of
Article 1154 of the French Code Civil, such interest is due for a
period of at least one year, but will remain immediately due and
payable.
9.8 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower of
the determination of a rate of interest under this Agreement.
9.9 EFFECTIVE GLOBAL RATE (TAUX EFFECTIF GLOBAL)
For the purposes of Articles L313-1 et seq, R 313-1 and R313-2 of the Code
de la Consommation, the Parties acknowledge that by virtue of certain
characteristics of the Facility (and in particular the variable interest
rate applicable to Loans and the Borrower's right to select the currency
and the duration of the Interest Period of each
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Loan) the taux effectif global cannot be calculated at the date of this
Agreement. However, the Company acknowledges that it has received from the
Agent a letter containing an indicative calculation of the taux effectif
global for each Facility, based on figured examples calculated on
assumptions as to the taux de periode and duree de periode set out in the
letter. The Parties acknowledge that that letter forms part of this
Agreement.
10. INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) Each Interest Period shall have a duration of one Month until:
(i) in respect of Facility A Loans and Facility B Loans only, the
Agent receives a Selection Notice requesting another duration
in accordance with the provisions of paragraph (b) below; or,
(ii) in respect of any Loan, the Borrower shall select another
duration in accordance with the provisions of paragraph (c)
below.
(b) The Company may not send the Selection Notice to the Agent prior to
the Syndication Date. The Company shall select pursuant to the
Selection Notice an Interest Period duration under Facility A Loans
and Facility B Loans of two, three or six Months (or any other
duration agreed between the Agent (acting on the instruction of all
the Lenders) and the Company). The selected Interest Period duration
shall apply to all Interest Periods relating to Facility A Loans and
Facility B Loans until the Facility A Final Maturity Date and the
Facility B Final Maturity Date respectively.
(c) Following the Syndication Date, any Utilisation Request delivered to
the Agent may select an Interest Period duration of one, two, three
or six Months (or any other period agreed between the Agent (acting
on the instruction of all the Lenders)) and the Company. Utilisation
Request delivered prior to the Syndication Date shall not select an
Interest Period duration other than one Month.
(d) Each Interest Period for a Loan shall start on the Utilisation Date
and each successive Interest Period shall commence on the last day
of the previous one.
(e) The first Interest Period of any Facility A Loan shall end on the
last day of all other outstanding Facility A Loans (if any).
(f) The first Interest Period of any Facility B Loan shall end on the
last day of all other outstanding Facility B Loans (if any).
(g) An Interest Period for a Loan shall not extend beyond the final
maturity date applicable to the Facility to which it relates.
10.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
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10.3 CONSOLIDATION OF LOANS
If two or more Interest Periods:
(i) relate to Loans made under the same Facility and in the same
currency;
(ii) end on the same date; and
(iii) are made to the same Borrower,
those Loans will be consolidated into, and treated as, a single Loan on
the last day of the Interest Period.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if EURIBOR or, if applicable,
LIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable EURIBOR or LIBOR shall be determined on the
basis of the quotations of the remaining Reference Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share of
that Loan for the Interest Period shall be the rate per annum which
is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be paid
in respect of that Interest Period, to be that which expresses
as a percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever source it
may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent
to determine EURIBOR or, if applicable, LIBOR for the relevant
currency and Interest Period; or
(ii) before close of business in Paris on the Quotation Day for the
relevant Interest Period, the Agent receives notifications
from a Lender or Lenders (whose participations in a Loan
exceed 30 per cent. of that Loan) that the cost to it of
obtaining matching deposits in the Relevant Interbank Market
would be in excess of EURIBOR or, if applicable, LIBOR.
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11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the Company so
requires, the Agent and the Company shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing
a substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Company, be
binding on all Parties.
11.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being paid
by that Borrower on a day other than the last day of an Interest
Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
12. FEES
12.1 COMMITMENT FEE
(a) The Company shall pay to the Agent (for the account of each Lender),
in respect of each Facility for its Availability Period, a fee in
the Base Currency computed at the rate of:
(i) 0.125 per cent. per annum on the Lenders' aggregate Available
Commitment under each Facility from the date of this Agreement
until 25 July 2004;
(ii) 0.15 per cent. per annum on the Lenders' aggregate Available
Commitment under each Facility during the period commencing on
26 July 2004 and ending on the expiry of the Certain Funds
Period;
(iii) 40 per cent. of the applicable margin (as determined for each
Facility in accordance with the provisions of Clause 9
(Interest)) on the Lenders' Available Commitment under each
Facility following the expiry of the Certain Funds Period.
(b) The commitment fee will be calculated on the basis of the actual
number of days elapsed in a year of 360 days.
For each Facility, the accrued commitment fee is payable on the last
day of each successive period of three Months which ends during the
relevant Availability Period, on the last day of the Availability
Period and on the cancelled amount of the relevant Lender's
Commitment at the time the cancellation is effective.
12.2 UPFRONT FEE
The Company shall pay to the Mandated Lead Arrangers an upfront fee in the
amount and at the times agreed in a Fee Letter.
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12.3 AGENCY FEE
The Company shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a Fee Letter.
12.4 EXTENSION FEE
(a) Upon the exercise by the Company of the First Extension Option, the
Company shall pay on or prior to the Facility A Original Final
Maturity Date to the Agent (for the account of each Lender under the
Facility A) an extension fee equal to 0.025 per cent. of the total
Facility A Commitment on the date of the Facility A Original Final
Maturity Date.
(b) Upon the exercise by the Company of the Second Extension Option, the
Company shall pay on or prior to the Facility A First Extended Final
Maturity Date to the Agent (for the account of each Lender under the
Facility A) an extension fee equal to 0.025 per cent. of the total
Facility A Commitments on the date of the Facility A First Extended
Final Maturity Date.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Agreement:
"PROTECTED PARTY" means a Finance Party which is or will be subject
to any liability, or required to make any payment, for or on account
of Tax in relation to a sum received or receivable (or any sum
deemed for the purposes of Tax to be received or receivable) under a
Finance Document.
"QUALIFYING LENDER" means:
(i) in relation to a Borrower which is formed under the laws of
France or is treated as resident in France for tax purposes, a
Lender which:
(A) has its Facility Office in France; or
(B) fulfils the conditions imposed by French law taking into
account, as the case may be, any double taxation
agreement in force (subject to the completion of any
necessary procedural formalities), in order for a
payment not to be subject to (or as the case may be, to
be exempt from) any Tax Deduction; or,
(C) a Treaty Lender;
(ii) or, in relation to a Borrower other than a Borrower referred
to in paragraph (i) above, a Lender which:
(A) has its Facility Office in the jurisdiction in which
that Borrower is formed or (if different) in the
jurisdiction (or jurisdictions) in which that Borrower
is treated as resident for tax purposes; or
(B) fulfils the conditions imposed by the laws of the
jurisdiction or jurisdictions mentioned in paragraph (A)
above taking into account, as the case may be, any
double taxation agreement in force (subject to the
completion of any necessary procedural formalities), in
order for a payment not to be subject to (or as the case
may be, to be exempt from) any Tax Deduction; or,
(C) a Treaty Lender.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account
of Tax from a payment under a Finance Document.
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"TAX PAYMENT" means an increased payment made by an Obligor to a
Finance Party under Clause 13.2 (Tax gross-up) or a payment under
Clause 13.3 (Tax indemnity).
"TREATY LENDER" means a Lender which is entitled to a payment under
a double taxation agreement (subject to the completion of any
necessary procedural formalities) without a Tax Deduction.
(b) Unless a contrary indication appears, in this Clause 13 a reference
to "determines" or "determined" means a determination made in the
absolute discretion of the person making the determination.
13.2 TAX GROSS-UP
(a) Each Borrower shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law.
(b) The Company shall promptly upon becoming aware that a Borrower must
make a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Agent accordingly. Similarly, a
Lender shall notify the Agent promptly on becoming so aware in
respect of a payment payable to that Lender. If the Agent receives
such notification from a Lender it shall promptly notify the Company
and that Borrower.
(c) If a Tax Deduction is required by law to be made by a Borrower, the
amount of the payment due from that Borrower shall be increased
(subject to Clause 8.7 (Mandatory prepayment in relation to a single
Lender)) to an amount which (after making any Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax
Deduction had been required.
(d) A Borrower is not required to make an increased payment to a Lender
under paragraph (c) above for a Tax Deduction from a payment of
interest on a Loan, if on the date on which the payment falls due:
(i) the payment could have been made to the relevant Lender
without a Tax Deduction if it was a Qualifying Lender, but on
that date that Lender is not or has ceased to be a Qualifying
Lender other than as a result of any change after the date it
became a Lender under this Agreement in (or in the
interpretation, administration, or application of) any law or
double taxation agreement, or any published practice or
concession of any relevant taxing authority; or,
(ii) the relevant Lender is a Treaty Lender and the Borrower making
the payment is able to demonstrate that the payment could have
been made to the Lender without the Tax Deduction had that
Lender complied with its obligations under paragraph (h)
below.
(e) Paragraph (d)(i) above shall not apply if a Tax Deduction arises in
respect of a Loan made to an Additional Borrower which is not French
tax resident.
(f) If a Borrower is required to make a Tax Deduction, that Borrower
shall make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed and in the minimum
amount required by law.
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(g) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower making
that Tax Deduction shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that
Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing
authority.
(h) A Treaty Lender and each Obligor which makes a payment to which that
Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain
authorisation to make that payment without a Tax Deduction.
13.3 TAX INDEMNITY
(a) The Company shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax
by that Protected Party in respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is
treated as resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be received
or receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under Clause
13.2 (Tax gross-up); or
(B) would have been compensated for by an increased payment
under Clause 13.2 (Tax gross-up) but was not so
compensated solely because one of the exclusions in
paragraph (d) of Clause 13.2 (Tax gross-up) applied.
(c) A Protected Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which
the Agent shall notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor
under this Clause 13.3, notify the Agent.
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13.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by the
Obligor.
13.5 STAMP TAXES
The Company shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.
13.6 VALUE ADDED TAX
(a) All consideration expressed to be payable under a Finance Document
by any Party to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable, on any supply made by any Finance
Party to any Party in connection with a Finance Document, that Party
shall pay to the Finance Party (in addition to and at the same time
as paying the consideration) an amount equal to the amount of the
VAT.
(b) Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same
time pay and indemnify the Finance Party against all VAT incurred by
the Finance Party in respect of the costs or expenses to the extent
that the Finance Party reasonably determines that it is not entitled
to credit or repayment of the VAT.
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions) the Company shall, within three
Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that
Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date of this
Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
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(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having entered
into its Commitment or funding or performing its obligations under any
Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 14.1
(Increased costs) shall notify the Agent of the event giving rise to
the claim, following which the Agent shall promptly notify the
Company.
(b) Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate indicating the event giving rise to
the claim and confirming the amount of its Increased Costs.
14.3 EXCEPTIONS
Clause 14.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(a) attributable to a Tax Deduction required by law to be made by an
Obligor;
(b) compensated for by Clause 13.3 (Tax indemnity) (or would have been
compensated for under Clause 13.3 (Tax indemnity) but was not so
compensated solely because one of the exclusions in paragraph (b) of
Clause 13.3 (Tax indemnity) applied);
(c) compensated for by the payment of the Mandatory Cost; or
(d) attributable to the wilful breach by the relevant Finance Party or
its Affiliates of any law or regulation.
15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from a Borrower under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in relation to
a Sum, has to be converted from the currency (the "FIRST Currency")
in which that Sum is payable into another currency (the "SECOND
CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Borrower;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
that Borrower shall as an independent obligation within three
Business Days of demand, indemnify to the extent permitted by law
each Finance Party to whom that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion including
any discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and (B)
the rate or rates of exchange available to that person at the time
of its receipt of that Sum.
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(b) Each Borrower waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or currency
unit other than that in which it is expressed to be payable.
15.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 27 (Sharing among
the Finance Parties);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by a Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by a Borrower or the Company.
15.3 INDEMNITY TO THE AGENT
The Company shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
16. MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13
(Tax gross-up and indemnities) Clause 14 (Increased costs) or
Schedule 4 (Mandatory Cost formulae) including (but not limited to)
transferring its rights and obligations under the Finance Documents
to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) The Company shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 16.1 (Mitigation).
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(b) A Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Agent and the Mandated Lead
Arrangers the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
17.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), the
Company shall, within three Business Days of demand, reimburse the Agent
for the amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
17.3 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
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SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
18. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 18 to each Finance Party in relation to itself and (where
applicable) its Subsidiaries on the date it enters into the relevant
Finance Document to which it is a party.
18.1 STATUS
(a) It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
(b) It and each of its Material Subsidiaries has the power to own its
assets and carry on its business as it is being conducted.
18.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to any Reservations, legal, valid, binding and enforceable
obligations.
18.3 NON-CONTRAVENTION WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not contravene to any extent
which is material as regards the Finance Documents with:
(a) any law or regulation applicable to it;
(b) its and each of its Material Subsidiaries' constitutional documents;
or
(c) any agreement or instrument binding upon it or any of its Material
Subsidiaries or any of its or any of its Material Subsidiaries'
assets.
18.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
18.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a
party; and
(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation save as set out in any
Reservations,
have been obtained or effected and are in full force and effect.
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18.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of French law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction of
incorporation.
(b) Any judgment obtained in France in relation to a Finance Document
will be recognised and enforced in its jurisdiction of
incorporation.
18.7 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation to
make any Tax Deduction from any payment it may make to any Qualifying
Lender (to the extent that such Qualifying Lenders has complied with all
necessary procedural formalities applicable to it) under any Finance
Document.
18.8 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents save as set out in any
Reservations.
18.9 NO DEFAULT
(a) No Event of Default is continuing or can reasonably be expected to
result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding on
it or any of its Material Subsidiaries or to which its (or its
Material Subsidiaries') assets are subject which might reasonably be
expected to have a Material Adverse Effect.
18.10 NO MISLEADING INFORMATION
(a) Any factual information provided by any member of the Group for the
purposes of the Information Memorandum will, to the best of the
Company's knowledge, be true and accurate in all material respects
as at the date it was provided or as at the date (if any) at which
it is stated.
(b) The financial projections contained in the Information Memorandum
will be prepared on the basis of recent historical information and
on the basis of reasonable assumptions.
(c) No information will be given or omitted by any member of the Group
that results in the information contained in the Information
Memorandum being untrue or misleading in any material respect.
(d) The representation made in this Clause 18.10 is made by the Company
only.
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18.11 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance with
GAAP consistently applied unless expressly disclosed to the Agent in
writing to the contrary before the date of this Agreement.
(b) Its Original Financial Statements (in conjunction with the notes
thereto) fairly represent its financial condition and operations
(consolidated in the case of the Company) during the relevant
financial year unless expressly disclosed to the Agent in writing to
the contrary before the date of this Agreement.
(c) There has been no material adverse change in its business or
financial condition (or the business or consolidated financial
condition of the Group, in the case of the Company) since the date
of closing of the financial year to which those Original Financial
Statements relate.
18.12 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
18.13 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have (to the best
of its and of its directors' knowledge and belief) been started or
threatened against it or any of its Material Subsidiaries.
18.14 REPETITION
Subject to Clause 18.15 (Non-Applicability), the Repeating Representations
are deemed to be made by each Obligor by reference to the facts and
circumstances then existing on:
(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Borrower, the day on which the company
becomes (or it is proposed that the company becomes) an Additional
Borrower.
18.15 NON-APPLICABILITY
(a) The representations set out in Clauses 18.1(b) (Status), 18.3
(Non-conflict with other obligations), 18.9 (No Default), 18.10 (No
Misleading Information), 18.11 (Financial Statements) and 18.13 (No
proceedings pending or threatened) do not apply in relation to:
(i) any member of the Target Group until 180 days after the date
when Target became a Subsidiary of the Company; and
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(ii) any company (other than a member of the Target Group) becoming
a member of the Group until 90 days after the date when that
company became a member of the Group.
(b) Notwithstanding the provisions of paragraph (a) above, the
representations set out in Clauses 18.1(b) (Status) and 18.3
(Non-conflict with other obligations) (together, for the avoidance
of doubt, with all Repeating Representations which are not mentioned
in paragraph (a) above and the representation set out in Clause 18.4
(Power and authority)) shall apply immediately in relation to any
member of the Group which becomes an Additional Borrower.
19. INFORMATION UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
19.1 FINANCIAL STATEMENTS
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 90
days after the end of each of its financial years:
(i) its audited consolidated financial statements for that
financial year; and
(ii) the audited financial statements of each Borrower for that
financial year; and
(b) as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years:
(i) its consolidated financial statements for that financial half
year; and
(ii) the financial statements of each Borrower for that financial
half year.
19.2 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i) or (b)(i) of
Clause 19.1 (Financial statements), a Compliance Certificate setting
out (in reasonable detail) computations as to compliance with Clause
20 (Financial covenants) as at the date as at which those financial
statements were drawn up.
(b) Each Compliance Certificate shall be signed by the Chief Executive
Officer (directeur general) or the Chief Financial Officer
(directeur financier) of the Company.
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19.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company pursuant
to Clause 19.1 (Financial statements) shall be certified by a
director of the relevant company as fairly representing its
financial condition as at the date as at which those financial
statements were drawn up.
(b) The Company shall procure that each set of financial statements of a
Borrower delivered pursuant to Clause 19.1 (Financial statements) is
prepared using applicable GAAP, accounting practices and financial
reference periods consistent with those applied in the preparation
of the Original Financial Statements for that Borrower (or, where
applicable, its latest annual financial statements delivered to the
Agent in accordance with this Clause 19) provided that, in relation
to the Company's consolidated financial statements, if any changes
has occurred in relation to applicable GAAP, accounting practices or
reference period, the Company shall notify the same to the Agent and
the Company's auditors shall deliver to the Agent:
(i) a description of any change necessary for those consolidated
financial statements to reflect the GAAP, accounting practices
and reference periods upon which the Company's Original
Financial Statements (or, where applicable, its latest annual
consolidated financial statements delivered to the Agent in
accordance with this Clause 19) were prepared; and
(ii) sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders to
determine whether Clause 20 (Financial covenants) has been
complied with and make an accurate comparison between the
financial position indicated in those consolidated financial
statements and the Company's Original Financial Statements
(or, where applicable, its latest annual consolidated
financial statements delivered to the Agent in accordance with
this Clause 19).
Any reference in this Agreement to those financial statements shall
be construed as a reference to those financial statements as
adjusted to reflect the basis upon which the Original Financial
Statements (or, where applicable, its latest annual financial
statements delivered to the Agent in accordance with this Clause 19)
were prepared.
19.4 INFORMATION: MISCELLANEOUS
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all information documents (excluding for the avoidance of doubt
notices of shareholders' meetings) dispatched by the Company to its
shareholders (or any class of them) or its creditors generally at
the same time as they are dispatched and the Company shall procure
that the same documents will be delivered to the Agent in relation
to Target as long as Target remains listed;
(b) promptly upon becoming aware of it, available information as to the
existence of any litigation, arbitration or administrative
proceedings which are current, threatened or pending against any
member of the Group, and
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which might, if adversely determined, be reasonably be expected to
have a Material Adverse Effect; and
(c) promptly, such further information regarding the financial condition
of any Obligor as any Finance Party (through the Agent) may
reasonably request.
19.5 NOTIFICATION OF DEFAULT
(a) Each Borrower shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless that Borrower is aware that a notification
has already been provided by another Borrower).
(b) Promptly upon a request by the Agent, the Company shall supply to
the Agent a certificate signed by two of its directors
(administrateurs) on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the Default
and the steps, if any, being taken to remedy it).
19.6 NOTIFICATION OF RATING CHANGE
For the purpose of determining the applicable margin in accordance with
the provisions of Clause 9 (Interest), the Company shall notify the Agent
of any change of a rating on its long term unsecured and unsubordinated
debt (or, as the case may be, on the Facility itself) assigned either by
S&P or ▇▇▇▇▇'▇ immediately upon becoming aware of the same.
19.7 NOTIFICATION OF TRANSFER OF INTELLECTUAL PROPERTY RIGHTS WITHIN THE GROUP
The Company undertakes to notify the Agent of any sale, lease, transfer or
other disposal (other than trough a licence) of any intellectual property
rights made by any Obligor in the benefit of any member of the Group which
is not an Obligor.
20. FINANCIAL COVENANTS
(a) The Company shall procure that on each Test Date (as from 30 June
2004 until and including 31 December 2008), the ratio of Net Debt to
EBITDA in respect of the Group on a consolidated basis for the
Relevant Period is no greater than 2.5 : 1.
(b) The Company shall procure that on each Test Date (as from and
including 30 June 2005 until and including 31 December 2008), the
Gross Debt of its Subsidiaries on a consolidated basis (without
taking into account any financial borrowing arising under Facility
C) shall at no time represent more than 1.0 times the EBITDA for the
Relevant Period.
(c) So as to meet as soon as possible the ratio set out in paragraph (b)
above, the Company undertakes to make its best efforts to refinance
indebtedness of Target incurred prior to the date on which the
Company notifies the Agent that it has the effective control of
Target (which date shall not be later than 3 Months following the
date on which Target becomes a Subsidiary of the Company), by way of
indebtedness incurred by the Company or incurred by Target under
Facility C.
(d) In this Clause 20:
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"GROSS DEBT" means financial borrowings, whether short or long term,
including all capital lease obligations as such concepts are defined
in the notes to the Original Financial Statements of the Company.
"NET DEBT" means Gross Debt after deduction of the total of cash,
cash equivalents and marketable securities held by the Company, as
provided in the consolidated balance sheet at each Test Date.
"EBITDA" means for each Relevant Period, consolidated operating
profit of the Group, as defined under accounting principles
applicable to the Company's Original Financial Statements, plus, as
applicable to the Relevant Period (if the following charges have
been deducted to obtain operating profit, ie without double
counting):
(i) any amortization and depreciation charges, be it of tangible
or intangible assets including goodwill,
(ii) any purchase IPR&D charge as evaluated by an independent
expert in accordance with applicable GAAP,
(iii) any impact of inventory step up upon adjustment of inventory
valuation to fair market value for the opening of the accounts
of the Group following the acquisition of Target as required
by GAAP,
(iv) any restructuring charge directly incurred in connection with
the Acquisition, such charges to be incurred in 2004 and 2005
only and not to exceed EUR 1,000,000,000 in any of these
years.
"RELEVANT PERIOD" means each twelve Month rolling basis period
ending on a Test Date.
"TEST DATE" means 30 June and 31 December of each calendar year.
(d) The financial covenants contained in this Clause 20 will be tested
on each Test Date by reference to the latest consolidated financial
statement delivered to the Agent in accordance with Clause 19.1
(Financial Statements).
21. GENERAL UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force and are subscribed by each Obligor
in relation to itself and where applicable its Subsidiaries.
21.1 AUTHORISATIONS
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Agent of,
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any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document (subject to the Reservations).
21.2 COMPLIANCE WITH LAWS
(a) Each Obligor shall comply in all respects with all laws to which it
may be subject, if failure so to comply would materially impair its
ability to perform its obligations under the Finance Documents.
(b) The Company shall comply in all respect with all material applicable
laws to which it may be subject in relation with the Offer.
21.3 NEGATIVE PLEDGE
(a) No Obligor shall (and the Company shall ensure that no other member
of the Group will) create or permit to subsist any Security over any
of its assets.
(b) No Obligor shall (and the Company shall ensure that no other member
of the Group will):
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by
an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms (other than pursuant to securitisation
programs of the Company's Group existing on the date hereof
and of Target Group existing on the date the Company notifies
the Agent that it has the effective control of Target (which
date shall not be later than 3 Months following the date on
which Target becomes a Subsidiary of the Company) and provided
that the cash proceeds thereof is applied toward the mandatory
prepayment of the Facilities where required in accordance with
Clause 18.10 (Mandatory prepayment and cancellation from Net
Cash Proceeds);
(iii) enter into any arrangement under which money or the benefit of
a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing
the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Security disclosed in the Original Financial Statements or
listed in Schedule 9 (Existing Security) except to the extent
the principal amount secured by that Security exceeds the
amount stated in that Schedule;
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(ii) any netting or set-off arrangement entered into by any member
of the Group in the ordinary course of its banking
arrangements or cash management (including hedging policies
made in accordance with sound commercial practices on the
basis of the existing Group policies) ;
(iii) any lien arising by operation of law and in the ordinary
course of trading;
(iv) any Security over or affecting any asset acquired by a member
of the Group after the date of this Agreement if:
(A) the Security was not created in contemplation of the
acquisition of that asset by a member of the Group;
(B) the principal amount secured has not been increased in
contemplation of, or since the acquisition of that asset
by a member of the Group; and
(C) the Security is removed or discharged within 9 Months of
the date of acquisition of such asset if not otherwise
permitted under this Clause 21.3;
(v) any Security over or affecting any asset of any company which
becomes a member of the Group after the date of this
Agreement, where the Security is created prior to the date on
which that company becomes a member of the Group, if:
(A) the Security was not created in contemplation of the
acquisition of that company;
(B) the principal amount secured has not increased in
contemplation of or since the acquisition of that
company; and
(C) the Security is removed or discharged within 9 Months of
that company becoming a member of the Group if not
otherwise permitted under this Clause 21.3;
(vi) any Security created in favour of a claimant or defendant in
any action of the court or tribunal before whom such action is
brought as security for costs or expenses where any member of
the Group is actively prosecuting or defending such action by
appropriate proceedings in the bona fide interests of the
Group;
(vii) any Security created pursuant to any order of attachment,
distraint, garnishee order, arrestment, adjudication or
injunction or interdict restraining disposal of assets or
similar legal process arising in connection with court
proceedings, provided the same are not, in the opinion of the
Majority Lenders, adverse to their interests;
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(viii) any Security for taxes or assessments that are being actively
contested in good faith by appropriate proceedings and for
which adequate provisions are being maintained to the extent
required by applicable principles;
(ix) any Security (a SUBSTITUTE SECURITY) which replaces any other
Security permitted pursuant to this Clause and which secures
an amount not exceeding the principal amount secured by such
permitted Security at the time it is replaced together with
any interest accruing on such amounts from the date such
Substitute Security is created or arises any fees or expenses
incurred in relation thereto provided that the existing
Security to be replaced is released and all amounts secured
thereby paid or otherwise discharged in full at or prior to
the time of such Substitute Security being created or arising;
(x) any Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any other
indebtedness which has the benefit of Security given by any
member of the Group other than any permitted under paragraphs
(i) to (vii) above) does not exceed EUR 100,000,000 (or its
equivalent in another currency or currencies) until the final
Original Offer Settlement Date and EUR 250,000,000 (or its
equivalent in another currency or currencies) thereafter.
21.4 DISPOSALS
(a) No member of the Group may enter into a single transaction or a
series of transactions (whether related or not) to sell, lease,
transfer or otherwise dispose of any asset (other than current
assets), unless:
(i) such transaction is made on arms' length for fair
consideration (taking into account timing and other
constraints which may arise, as the case may be, in relation
to disposals required by any anti-trust authority);
(ii) the Net Disposal Proceeds resulting from such transaction are
applied towards the mandatory prepayment of the Facilities
where required pursuant to Clause 8.10 (Mandatory prepayment
and cancellation from Net Cash Proceeds).
(b) The Company shall not sell, lease, transfer or otherwise dispose of
(other than through a licence and for fair consideration) any
intellectual property rights generating a significant source of
income or likely to generate a significant source of income during
the duration of this Agreement to any member of the Group unless
such transfer is made in compliance with the general policy of the
Group as regards intellectual property rights and the transferee
agrees to grant a first demand guarantee up to the maximum amount
legally possible (in a form satisfactory to the Lenders and based on
the terms and conditions consistent with those of the Guarantee) for
the benefit of the Lenders securing all or part of the obligations
of the transferor under the Finance Documents.
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21.5 ACQUISITION
(a) As long as all commitments under Facility A and Facility B have not
been entirely cancelled and/or repaid, the Company shall ensure that
the aggregate amount in enterprise value of acquisitions and
investments in business, shares or other assets made by it or any
member of the Group during such period will not exceed EUR
10,000,000,000 provided that neither the Acquisition nor acquisition
or investment made within the ordinary course of business shall be
taken into account for the purpose of determining whether the above
threshold has been met.
(b) The Company shall ensure that no acquisition or investments made by
it or any other member of the Group will have a Material Adverse
Effect.
21.6 MERGER
No Obligor shall (and the Company shall ensure that no other member of the
Group will) enter into any amalgamation, merger or corporate
reconstruction other than under a solvent liquidation or reorganisation
involving (i) members of the Group only or (ii) members of the Group and
third parties for the purpose of achieving an acquisition authorised
pursuant to Clause 21.5 (Acquisition) provided in each case that if any
member of the Group involved in any such amalgamation, merger or corporate
reconstruction is an Obligor, such Obligor shall be the surviving entity.
21.7 CHANGE OF BUSINESS
The Company shall procure that no substantial change is made to the
general nature of the business of the Company or the Group from that
carried on at the date of this Agreement.
21.8 OFFER
(a) The terms (including the price) and conditions of the Increased
Offer shall be agreed between the Company and the Original Lenders
prior to the Increased Offer Announcement Date.
(b) The Company undertakes to carry out the Original Offer in accordance
with the terms and conditions agreed with the Lenders and shall not,
without the consent of the Majority Lenders, make, or agree to, any
waiver or change of any condition precedent or term (including the
price) of the Original Offer or take or permit to be taken any step
or make any public statement as a result of which the terms
(including the price) and/or conditions of the Original Offer are,
or may be required to be, waived or changed, provided that no such
consent shall be required in relation to any waiver or change of any
term and/or condition of the Original Offer (i) relating to the
duration of the Original Offer (when filed) and to any extension
thereof or (ii) resulting from the withdrawal of the Original Offer
decided by the Company.
(c) The Company undertakes to file the Increased Offer and the note
d'information relating thereto with the AMF as soon as practicable
and at the latest 10 Business Days following the date of this
Agreement, failing which the Commitments of the Lenders under this
Agreement shall be automatically cancelled in accordance with
provisions of Clause 8.4 (Mandatory Cancellation).
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(d) The Company may make an Additional Offer without the prior consent
of the Majority Lenders as long as such Additional Offer is made on
substantially the same terms and conditions as the Original Offer
(save for such changes as are permitted without the prior Lenders'
approval or as to which the Lenders have granted their consent
pursuant to paragraph (b) above).
(e) The Company shall keep the Agent informed at all times of all
proposed modifications, of all modifications and of all material
developments in relation to the Offer (including where available,
the levels of acceptance) and provide promptly, such further
information or document as any Finance Party (through the Agent) may
reasonably request in relation to the Offer.
(f) The Company shall conduct its business during the whole duration of
the Original Offer in accordance with its strategy as publicly
announced. In addition, during such period, the Company shall not
proceed with any distribution of dividends for an amount greater
than EUR 1,000,000,000.
21.9 TRANSFER OF NET CASH PROCEEDS
Without prejudice to paragraphs (f) to (i) of Clause 8.10 (Mandatory
prepayment and cancellation from Net Cash Proceeds), the Company shall
(and shall ensure that any member of the Group will) make its best efforts
to carry out any transfer of Net Cash Proceeds from any member of the
Group to the Company for the purposes of allowing the Company to meet its
obligations to proceed with early prepayment pursuant to such Clause 8.10
(Mandatory prepayment and cancellation from Net Cash Proceeds).
21.10 DEBT ISSUE
As long as amounts outstanding under Facility A and Facility B have not
been reduced to two thirds of the aggregate of the Total Facility A
Commitment and the Total Facility B Commitment at the date of this
Agreement, no Debt Issue shall be made by any member of the Group other
than the Company except where the Net Debt Issue Proceeds arising under
such Debt Issue may be applied towards repayment of Facility A and
Facility B in accordance with Clause 8.11 (d) (in particular as regards
timing) without any delay, prohibition or exemption resulting from Clause
8.11.(e).
21.11 NEW SUBSIDIARIES
The undertakings set out in this Clause 21 shall not apply to any
transaction, contract or arrangement to which any entity which becomes a
member of the Group after the date of this Agreement was a party prior to
it becoming a member of the Group (and which was not entered into in
contemplation of its becoming a member of the Group) until 180 days after
the date on which that entity becomes a member of the Group.
22. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 22 is an Event of
Default.
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22.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document (except an amount the non-payment of which requires the
Borrower to make a prepayment under Clause 8.7 (Mandatory prepayment in
relation to a single Lender)) at the place at and in the currency in which
it is expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical error;
and
(b) payment is made within 3 Business Days of its due date.
22.2 FINANCIAL COVENANTS
Any requirement of Clause 20 (Financial covenants) is not satisfied.
22.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 22.1 (Non-payment)
and Clause 22.2 (Financial covenants)).
(b) No Event of Default under paragraph (a) above in relation to Clauses
21.1 (Authorisation) to 21.6 (Merger) will occur if the failure to
comply is, in the opinion of the Majority Lenders, capable of remedy
and is remedied within 15 Business Days of the earlier of (i) the
Agent giving notice to the Company or (ii) the Company becoming
aware of the failure to comply.
22.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor in
the Finance Documents or any other document delivered by or on behalf of
any Obligor under or in connection with any Finance Document is or proves
to have been incorrect or misleading in any material respect when made or
deemed to be made.
22.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group is not paid
when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is declared to
be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described)
except as the case may be (a) where such declaration is being
actively contested by the relevant member of the Group in good faith
by the taking of appropriate proceedings before the competent
courts, (b) the Company has provided to the Agent, within 10
Business Days of such declaration, opinions from two leading
international law firms that the relevant member of the Group has
good grounds for taking such a position and a certificate stating
that the relevant member of the Group has established adequate
reserves in respect of such Financial Indebtedness if required under
the applicable GAAP and (c) such declaration is waived or dismissed
within twelve Months of such declaration.
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(c) Any commitment for any Financial Indebtedness of any member of the
Group is cancelled or suspended by a creditor of any member of the
Group as a result of an event of default (however described) except
as the case may be:
(i) (a) where such cancellation or suspension is being actively
contested by the relevant member of the Group in good faith by
the taking of appropriate proceedings before the competent
courts, (b) the Company has provided to the Agent, within 10
days of such declaration, opinions from two leading
international law firms that the relevant member of the Group
has good grounds for taking such a position and (c) such
cancellation or suspension is waived or dismissed within
twelve Months of such declaration, or
(ii) where such Financial Indebtedness is suspended only as a
result of an event of default (however described) which has
not yet been declared for the purpose of the cancellation of
such Financial Indebtedness and in respect of which the
relevant borrower has made a waiver request unless the related
Financial Indebtedness is cancelled and/or the relevant waiver
is not obtained within 10 Business Days following the
occurrence of the related event of default.
(d) Any creditor of any member of the Group becomes entitled to declare
any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of
default (however described) except, as long as such event of default
has not been declared, where the relevant Borrower has made a waiver
request and provided that the relevant waiver is obtained within 10
Business Days following the occurrence of the related event of
default.
(e) No Event of Default will occur under this Clause 22.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is
less than EUR 200,000,000 (or its equivalent in any other currency
or currencies).
22.6 INSOLVENCY
(a) A Borrower or any Material Subsidiary is unable or admits inability
to pay its debts as they fall due, suspends making payments on any
of its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.
(b) A Borrower or any Material Subsidiary which conducts business in
France is in a state of cessation des paiements, or a Borrower or
any Material Subsidiary becomes insolvent for the purpose of any
insolvency law.
(c) A moratorium is declared in respect of any indebtedness of a
Borrower or any Material Subsidiary.
22.7 INSOLVENCY PROCEEDINGS
(a) Any corporate action, legal proceedings or other procedure or step
is taken in relation to:
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(i) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement or
otherwise) of a Borrower or any Material Subsidiary other than
a solvent liquidation or reorganisation of any member of the
Group which is not an Obligor;
(ii) the appointment of a liquidator (other than in respect of a
solvent liquidation of a member of the Group which is not an
Obligor), receiver, administrator, administrative receiver,
compulsory manager or other similar officer in respect of a
Borrower or any Material Subsidiary or any of its assets;
(iii) enforcement of any Security over any assets of a Borrower or
any Material Subsidiary in respect of claim(s) in excess in
aggregate of EUR 100,000,000; or
(b) any analogous procedure or step is taken in any jurisdiction.
(c) A Borrower or any Material Subsidiary commences proceedings for
reglement amiable in accordance with articles L.611-3 to L.611-6 of
the French Code de Commerce (or any analogous procedure is commenced
in any relevant jurisdiction).
(d) A judgement for redressement judiciaire, cession totale de
l'entreprise or liquidation judiciaire is entered in relation to the
Company or any member of the Group under articles L.620-1 to L.628-3
of the French Code de Commerce (or any analogous judgment is
rendered in any relevant jurisdiction).
22.8 CREDITORS' PROCESS
Any of the enforcement proceedings provided for in French law no.91-650 of
9 July 1991, or any expropriation, attachment, sequestration, distress or
execution affects any asset or assets of a member of the Group having an
aggregate value of 100,000,000 and, in respect of conservatory proceedings
only, is not discharged within 15 Business Days.
22.9 MATERIAL ADVERSE CHANGE
A Material Adverse Effect occurs.
22.10 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may without mise en demeure or any other judicial or
extra judicial step, and shall if so directed by the Majority Lenders, by
notice to the Company but subject to the mandatory provisions of articles
L.620-1 to L.628-3 of the French Code de Commerce:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled; and/or
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be
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immediately due and payable, whereupon they shall become immediately
due and payable.
22.11 NEW SUBSIDIARIES
Any event or circumstances which would otherwise constitute an Event of
Default and which would exist only in relation to any entity becoming a
member of the Group and which only:
(a) occurred or existed before the date on which such entity became a
member of the Group; or
(b) arose as a result of such entity having become a member of the Group
will not constitute an Event of Default or entitle the Agent, or entitle
the Lenders to instruct the Facility Agent, to make a declaration under
Clause 22.10 (Acceleration) unless the event or circumstances continue for
a period of 180 days or such shorter period of time as may be provided for
under Clause 18.15 (Non-Applicability) after the date on which such
company becomes a member of the Group or such event or circumstances recur
after the expiry of such period.
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SECTION 8
CHANGES TO PARTIES
23. CHANGES TO THE LENDERS
23.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
(a) Subject to this Clause 23, a Lender (the "EXISTING LENDER") may:
(i) assign any of its rights; or
(ii) transfer any of its rights (including such as relate to that
Lender's participation in each Loan) and obligations,
to another bank or financial institution (the "NEW LENDER").
(b) The consent of the Finance Parties is hereby given to a transfer by
an Existing Lender to a New Lender.
23.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Company is required for an assignment or transfer
by a Lender, provided that:
(i) in the case of an assignment, no consent is required if the
assignment is to another Lender or an Affiliate of a Lender or
following the occurrence of an Event of Default which is
continuing, and
(ii) the Company hereby consents to a transfer to another Lender or
an Affiliate of a Lender.
(b) The consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. The Company will be deemed to have
given its consent ten Business Days after the Lender has requested
it unless consent is expressly refused by the Company within that
time.
(c) The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(d) A Lender may assign or transfer all of part of its Commitments in
any of the Facilities on a non prorata basis between the Facilities.
(e) Any transfer and assignment shall be of a minimum amount of EUR
10,000,000.
(f) An assignment will only be effective as among the Finance Parties on
receipt by the Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Agent) that the New Lender
has become entitled to the same rights and will assume the same
obligations to the other Finance Parties as it would have been under
if it was an Original Lender.
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(g) A transfer will only be effective if the procedure set out in Clause
23.5 (Procedure for transfer) is complied with.
(h) If:
(i) a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under Clause 13 (Tax gross-up
and indemnities), Clause 14 (Increased Costs) or Schedule 4
(Mandatory Cost formulae).
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.
23.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of EUR 1,000.
23.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
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(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 23;
or
(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
23.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 23.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Agreement delivered to it by the Existing Lender
and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Agreement appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Agreement.
(b) By virtue of the execution of a Transfer Agreement, as from the
Transfer Date:
(i) to the extent that in the Transfer Agreement the Existing
Lender seeks to transfer its rights and obligations under the
Finance Documents, the Existing Lender shall be discharged to
the extent provided for in the Transfer Agreement from further
obligations towards each of the Obligors and the other Finance
Parties under the Finance Documents;
(ii) the rights and obligations of the Existing Lender with respect
to the Obligors shall be transferred to the New Lender, to the
extent provided for in the Transfer Agreement;
(iii) the Agent, the Mandated Lead Arrangers, the New Lender and
other Lenders shall have the same rights and obligations
between themselves as they would have had had the New Lender
been an Original Lender with the rights and/or obligations to
which it is entitled and subject as a result of the transfer
and to that extent the Agent, the Mandated Lead Arrangers and
the Existing Lender shall each be released from further
obligations to each other under the Finance Documents; and
(iv) the New Lender shall become a Party as a "LENDER".
23.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
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(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking.
24. CHANGES TO THE OBLIGORS
24.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Borrower may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
24.2 ADDITIONAL BORROWERS
(a) The Company may request that any of its Subsidiaries (including
Target and its Subsidiaries upon their becoming a member of the
Group) becomes an Additional Borrower. That Subsidiary shall become
an Additional Borrower if:
(i) the Majority Lenders approve the addition of that Subsidiary
and agree with the Company upon a borrowing limit in respect
of such Subsidiary unless it is Target;
(ii) the Company delivers to the Agent a duly completed and
executed Accession Letter;
(iii) the Company confirms that no Default is continuing or would
occur as a result of that Subsidiary becoming an Additional
Borrower;
(iv) the Agent has received all of the documents and other evidence
listed in Part III of Schedule 2 (Conditions precedent
required to be delivered by an Additional Borrower) in
relation to that Additional Borrower, each in form and
substance satisfactory to the Agent; and
(v) the Company has issued a Guarantee in relation to the
obligations of that Additional Borrower under this Agreement.
(b) The Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in
Part III of Schedule 2 (Conditions precedent required to be
delivered by an Additional Borrower).
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(c) No more than 7 Subsidiaries shall at any time be party to this
Agreement as Additional Borrowers.
24.3 RESIGNATION OF A BORROWER
(a) The Company may request that a Borrower (other than the Company)
ceases to be a Borrower by delivering to the Agent a Resignation
Letter.
(b) The Agent shall accept a Resignation Letter and notify the Company
and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance
of the Resignation Letter (and the Company has confirmed this
is the case); and
(ii) the Borrower is under no actual or contingent obligations as a
Borrower under any Finance Documents,
whereupon that company shall cease to be a Borrower and shall have
no further rights or obligations under the Finance Documents.
24.4 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in
relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.
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SECTION 9
THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS
25.1 APPOINTMENT OF THE AGENT
(a) Each other Finance Party appoints the Agent to act as its agent
under and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to
the Agent under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and
discretions.
25.2 DUTIES OF THE AGENT
(a) The Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Agent for that Party by
any other Party.
(b) Except where a Finance Document specifically provides otherwise, the
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Finance
Parties.
(d) If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than
the Agent or the Mandated Lead Arrangers) under this Agreement it
shall promptly notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
25.3 ROLE OF THE MANDATED LEAD ARRANGERS
Except as specifically provided in the Finance Documents, the Mandated
Lead Arrangers have no obligations of any kind to any other Party under or
in connection with any Finance Document.
25.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the Mandated Lead
Arrangers as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Mandated Lead Arrangers shall be bound to
account to any Lender for any sum or the profit element of any sum
received by it for its own account.
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25.5 BUSINESS WITH THE GROUP
The Agent and the Mandated Lead Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
25.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
(b) The Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 22.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a
Utilisation Request or Selection Notice) is made on behalf of
and with the consent and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Mandated Lead Arrangers is
obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or regulation or a
breach of a fiduciary duty or duty of confidentiality.
25.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Agent shall exercise any right, power, authority or discretion
vested in it as Agent in accordance with any instructions given to
it by the Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (b) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in
accordance with an instruction of the Majority Lenders.
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(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require for
any cost, loss or liability (together with any associated VAT) which
it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender in any
legal or arbitration proceedings relating to any Finance Document,
without having first obtained that Lender's authority to act on its
behalf in those proceedings.
25.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Mandated Lead Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Mandated Lead Arrangers, an Obligor or any other person given in or
in connection with any Finance Document or the Information
Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
25.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be liable
for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party (other than the Agent) may take any proceedings against any
officer, employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or omission of
any kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent may
rely on this Clause.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by the Agent if the Agent has taken
all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing
or settlement system used by the Agent for that purpose.
25.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior
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to their reduction to zero) indemnify the Agent, within three Business
Days of demand, against any cost, loss or liability incurred by the Agent
(otherwise than by reason of the Agent's gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the
Agent has been reimbursed by an Obligor pursuant to a Finance Document).
25.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in France as successor by giving notice to the
other Finance Parties and the Company.
(b) Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Company, in which case the Majority Lenders
(after consultation with the Company) may appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Company) may appoint a successor Agent (acting through an office in
France).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
25. Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been an original Party.
(g) After consultation with the Company, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
25.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
25.13 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless
it has received not less than five Business Days prior notice from
that Lender to the contrary in accordance with the terms of this
Agreement.
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(b) Each Lender shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (Mandatory Cost formulae).
25.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Mandated Lead Arrangers that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document.
25.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Company) appoint another Lender or an Affiliate of a
Lender to replace that Reference Bank.
25.16 DEDUCTION FROM AMOUNTS PAYABLE BY THE AGENT
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent would
otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.
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26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
27. SHARING AMONG THE FINANCE PARTIES
27.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers any
amount from an Obligor other than in accordance with Clause 28 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 28 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "SHARING
PAYMENT") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance Party
as its share of any payment to be made, in accordance with Clause
28.5 (Partial payments).
27.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Finance Party) in accordance with Clause 28.5 (Partial
payments).
27.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Agent under Clause 27.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution which Finance Parties agree that they will in that
connection waive the benefit of Article 1252 of the French Code
Civil.
(b) If and to the extent that the Recovering Finance Party is not able
to rely on its rights under paragraph (a) above, the relevant
Obligor shall be liable to the Recovering Finance Party for a debt
equal to the Sharing Payment which is immediately due and payable.
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27.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 27.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of
that Recovering Finance Party an amount equal to the appropriate
part of its share of the Sharing Payment (together with an amount as
is necessary to reimburse that Recovering Finance Party for its
proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing Finance Party for the amount so
reimbursed.
27.5 EXCEPTIONS
(a) This Clause 27 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the relevant
Obligor.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice and did
not take separate legal or arbitration proceedings.
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SECTION 10
ADMINISTRATION
28. PAYMENT MECHANICS
28.1 PAYMENTS TO THE AGENT
(a) On each date on which a Borrower or a Lender is required to make a
payment under a Finance Document, that Borrower or Lender shall make
the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time
and in such funds specified by the Agent as being customary at the
time for settlement of transactions in the relevant currency in the
place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro, in
a principal financial centre in a Participating Member State or
London) with such bank as the Agent specifies.
28.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 28.3 (Distributions to an Obligor) and
Clause 28.4 (Clawback) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
28.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Borrower or in accordance with
Clause 29 (Set-off)) apply any amount received by it for that Borrower in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
28.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to
the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent
to reflect its cost of funds.
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28.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the Finance
Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the
following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent under the Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by
an Obligor.
28.6 NO SET-OFF BY BORROWERS
All payments to be made by a Borrower under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
28.7 BUSINESS DAYS
(a) Any payment (other than an Acquisition Payment) which is due to be
made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
28.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from a Borrower
under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid Sum
is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
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(d) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
28.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Company); and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Company) specifies to be necessary, be amended
to comply with any generally accepted conventions and market
practice in the Relevant Interbank Market and otherwise to reflect
the change in currency.
29. SET-OFF
A Finance Party may set off any matured obligation due from a Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
30. NOTICES
30.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
30.2 ADDRESSES
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each Party
for any communication or document to be made or delivered under or in
connection with the Finance Documents is:
(a) in the case of the Company, that identified with its name below;
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(b) in the case of each Lender or the Company, that notified in writing
to the Agent on or prior to the date on which it becomes a Party;
and
(c) in the case of the Agent, that identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
30.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address; or
(iii) if by way of telex, when despatched, but only if, at the time
of transmission, the correct answerback appears at the start
and at the end of the sender's copy of the notice;
and, if a particular department or officer is specified as part of its
address details provided under Clause 30.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and then
only if it is expressly marked for the attention of the department
or officer identified with the Agent's signature below (or any
substitute department or officer as the Agent shall specify for this
purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or
delivered to each of the Obligors.
30.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and telex
number or change of address, fax number or telex number pursuant to Clause
30.2 (Addresses) or changing its own address, fax number or telex number,
the Agent shall notify the other Parties.
30.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Agent and a Lender under or
in connection with the Finance Documents may be made by electronic
mail or other electronic means, if the Agent and the relevant
Lender:
(i) agree that, unless and until notified to the contrary, this is
to be an accepted form of communication;
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(ii) notify each other in writing of their electronic mail address
and/or any other information required to enable the sending
and receipt of information by that means; and
(iii) notify each other of any change to their address or any other
such information supplied by them.
(b) Any electronic communication made between the Agent and a Lender
will be effective only when actually received in readable form and
in the case of any electronic communication made by a Lender to the
Agent only if it is addressed in such a manner as the Agent shall
specify for this purpose.
30.6 LANGUAGE
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any Finance
Document must be in English or in French (if not available in
English).
31. CALCULATIONS AND CERTIFICATES
31.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
31.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
31.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
32. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies
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provided in this Agreement are cumulative and not exclusive of any rights
or remedies provided by law.
34. CONFIDENTIALITY
34.1 CONFIDENTIALITY UNDERTAKING
Each of the Finance Parties undertakes to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by Clause 34.2, to ensure that the Confidential Information
is protected with security measures and a degree of care that would apply
to its own confidential information, and to use the Confidential
Information solely for the purposes of this Agreement.
34.2 PERMITTED DISCLOSURE
The Company acknowledges and agrees that the Finance Parties (or any of
them) may disclose Confidential Information:
(a) to their affiliates and their officers, directors, employees and
professional advisers to the extent strictly necessary for the
purposes of this Agreement and to any auditors of any such affiliate
and provided in each case that such person shall agree to be bound
by the same confidentiality undertaking as set out in Clause 34.1
(to the extent that they do not have a duty of confidentiality by
their status or otherwise);
(b) (i) where requested or required by any court of competent
jurisdiction, any arbitration or other legal proceedings or any
competent judicial, governmental, supervisory or regulatory body,
(ii) where required by the rules of any stock exchange on which its
or the shares or other securities of any affiliate or of the Company
or Target are listed or (iii) where required by the laws or
regulations of any country with jurisdiction over its or the affairs
of any affiliate or over the affair of the Company or Target;
(c) to any prospective lender or assignee which acknowledges in written
form and accepts to be bound by the provisions of this Clause 34 and
which undertakes to use the Confidential Information only for
considering and evaluating whether to enter into the Facility; or
(d) with the prior written consent of the Company.
34.3 NOTIFICATION OF REQUIRED DISCLOSURE
Each of the Finance Parties agrees (to the extent permitted by law other
than disclosed to any regulatory body made in the normal course of such
regulatory body's supervisory function) to inform the Company of any
disclosure under Clause 34.2(b).
34.4 INSIDER DEALING
Each of the Finance Parties acknowledges that some or all of the
Confidential Information is or may be price-sensitive information and that
the use of such information may be regulated or prohibited by applicable
legislation relating to insider dealing and undertakes not to use any
Confidential Information for any unlawful purpose.
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34.5 DURATION
The confidentiality undertaking of the Finance Parties hereunder shall
expire in respect of each Confidential Information twelve Months after it
is first delivered to the Finance Parties hereunder.
35. AMENDMENTS AND WAIVERS
35.1 REQUIRED CONSENTS
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Obligors and any such amendment or waiver
will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
35.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in any Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrowers or Guarantors other than in
accordance with Clause 24 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause
23 (Changes to the Lenders) or this Clause 35; or
(viii) Clause 8.4 (Mandatory Cancellation) and Clause 8.10
(Mandatory prepayment and cancellation from Net Cash
Proceeds),
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of
the Agent or the Mandated Lead Arrangers may not be effected without
the consent of the Agent or the Mandated Lead Arrangers.
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SECTION 11
GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by French law.
37. ENFORCEMENT - JURISDICTION OF FRENCH COURTS
37.1 The Tribunal de Commerce de Paris has exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) (a "Dispute").
37.2 Clause 37.1 is for the benefit of the Finance Parties only. As a result,
no Finance Party shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed by
law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.
38. ELECTION OF DOMICILE
Without prejudice to any other mode of service allowed under any relevant
law, each Additional Borrower irrevocably elects domicile at the corporate
seat (siege social) of the Company in Paris for the purpose of serving any
judicial or extra-judicial documents in relation to any action or
proceedings referred to above.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
- 85 -
SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGOR
Name of the Borrower Registration number
SANOFI-SYNTHELABO SA 395 030 844 RCS Paris
- 86 -
PART II
THE ORIGINAL LENDERS
NAME OF ORIGINAL LENDER FACILITY A COMMITMENT FACILITY B COMMITMENT FACILITY C COMMITMENT
----------------------- --------------------- --------------------- ---------------------
BNP PARIBAS SA EUR 3,333,333,334 EUR 3,666,666,667 EUR 3,666,666,667
16 des Italiens
▇▇▇▇▇ ▇▇▇▇▇
662 042 449 RCS ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS LLC EUR 1,666,666,666 EUR 1,833,333,333 EUR 1,833,333,333
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
- 87 -
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO SIGNING
1. CORPORATE DOCUMENTATION
(a) A K-bis extract for the Company, not more than one Month old prior
to the date of signing.
(b) A certified copy of the constitutive documents (statuts) of the
Company.
(c) Evidence that the person(s) who has signed the Finance Documents on
behalf of the Company was duly authorised so to sign.
(d) A copy of a resolution of the board of directors of the Company
approving the terms of the Finance Documents to which the Company is
a party and authorising a specified person or persons, on its
behalf, to execute those Finance Documents.
(e) A specimen of the signature of each person referred to in paragraph
(c) above and of each person authorised by the resolution referred
to in paragraph (d) above.
(f) A certificate of an authorised signatory of the Company certifying
that each copy document relating to it specified in this Part I of
Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
2. LEGAL OPINION
(a) A legal opinion of Linklaters, legal advisers to the Company in
France, as to due authorisation and due authority substantially in
the form distributed to the Original Lenders prior to signing this
Agreement.
3. OTHER DOCUMENTS AND EVIDENCE
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable (if
it has notified the Company accordingly) in connection with the
entry into and performance of the transactions contemplated by any
Finance Document or for the validity and enforceability of any
Finance Document.
(b) The Original Financial Statements of the Company.
(c) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 12 (Fees) and Clause 17 (Costs and expenses) have
been paid or will be paid by the first Utilisation Date.
(d) A copy of an irrevocable notice of cancellation of all the lenders'
commitments under the EUR 12,000,000,000 facility agreement dated 25
January 2004 and entered into by the Company and BNP Paribas and
▇▇▇▇▇▇▇
- 88 -
▇▇▇▇▇ Credit Products as Mandated Lead Arrangers and Original
Lenders sent to the agent thereunder, such notice being dated and
having effect on the date of this Agreement.
- 89 -
PART II
CONDITIONS PRECEDENT TO UTILISATION ON THE SETTLEMENT DATES
1. CONDITIONS PRECEDENT TO UTILISATION ON EACH ORIGINAL OFFER SETTLEMENT DATE
(a) A copy of the press release from the Company dated on or about the
Announcement Date announcing the Original Offer, a copy of the press
release from the Company announcing the Increased Offer,
substantially in the form agreed by the Lenders before signing
together with any press release, if any, announcing amendments to
the Original Offer (such press release to be substantially in the
form previously agreed by the Lenders where such agreement is
required pursuant Clause 21.8 (Offer));
(b) a copy of the note d'information filed by the Company with the AMF
on the Announcement Date in connection with the Original Offer, a
copy of the note d'information filed by the Company with the AMF on
the Increased Offer Announcement Date in connection with the
Increased Offer together with any other note d'information, if any,
filed by the Company with the AMF in connection with the Original
Offer;
(c) a copy of a resolution of the meeting of the shareholders of the
Company approving the issue of the Company's Consideration Shares;
(d) a copy of a resolution of the board of directors deciding the issue
of the Company's Consideration Shares;
(e) a certificate from the directeur general of the Company confirming
that the Company has complied with its obligations relating to the
Original Offer;
(f) a certificate from the directeur general of the Company confirming
that all the conditions to the Original Offer have been met;
(g) a copy of the Original Offer Result Notice indicating that the
Original Offer has been successful;
(h) evidence (in the form of the notice referred to in paragraph 3(d) of
Part I of Schedule 2 (Conditions precedent to signing)) that all
commitments under the EUR 12,000,000,000 facility agreement dated 25
January 2004 and entered into, inter alia by the Company and the
Mandated Lead Arrangers have been cancelled.
2. CONDITIONS PRECEDENT TO UTILISATION ON EACH ADDITIONAL OFFER SETTLEMENT
DATE (IF ANY)
(a) A copy of the press release from the Company announcing the
Additional Offer;
(b) a copy, as the case may be, of any note d'information filed by the
Company with the AMF in connection with the Additional Offer;
- 90 -
(c) a copy of a resolution of the board of directors or, as applicable,
of a decision of the chairman of the board of directors deciding the
issue of the Company's Consideration Shares relating to the
Additional Offer;
(d) a certificate from the directeur general of the Company confirming
that the Company has complied with its obligations relating to the
Additional Offer;
(e) a copy of the Additional Offer Result Notice.
3. CONDITIONS PRECEDENT TO UTILISATION ON EACH SQUEEZE-OUT OFFER SETTLEMENT
DATE (IF ANY)
(a) A copy of the press release from the Company announcing the
Squeeze-Out Offer;
(b) a copy, as the case may be, of any notice filed by the Company with
the AMF in connection with the Squeeze-Out Offer;
(c) a certificate from the directeur general of the Company confirming
that the Company has complied with its obligations relating to the
Squeeze-Out Offer;
(d) a copy of Squeeze-Out Offer result notice.
- 91 -
PART III
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED IN RESPECT OF AN ADDITIONAL BORROWER
1. An Accession Letter, duly executed by that Additional Borrower and the
Company.
2. A K-bis extract (or the equivalent thereof) for the Additional Borrower
not more than one Month old.
3. A copy of the constitutional documents of the Additional Borrower.
4. Evidence that the person(s) who has signed the Accession Letter on behalf
of that Additional Borrower and the Company was duly authorised so to
sign.
5. A copy of a resolution of the board of directors of the Company taken in
accordance with article L.225-35 of the French Code de Commerce approving
the terms of the Guarantee granted by it, and authorising a specified
person or persons on its behalf, to execute that Guarantee.
6. A specimen of the signature of each person referred to in paragraph 4
above and of each person authorised by the resolution referred to in
paragraph 5 above.
7. A certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part III of Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Accession Letter or, as the case may be, the
Guarantee.
8. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or, as the case may be, the Guarantee or for the validity
and enforceability of any Finance Document.
9. A copy of the Original Financial Statements of the Additional Borrower.
10. A copy of the Guarantee in respect of the Additional Borrower duly
executed by the Guarantor.
11. A legal opinion of Linklaters, legal advisers to the Company, as to due
authorisation and due authority of the Company in respect of the Accession
Letter and the Guarantee and of the Additional Borrower in respect of the
Accession Letter in a form reasonably satisfactory to the Agent.
- 92 -
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
- 93 -
A - UTILISATION REQUEST IN RELATION TO AN ACQUISITION LOAN
From: [Presenting Bank]
To: [Agent]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 16,000,000,000 FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. This Utilisation Request is delivered by ourselves in our capacity of
Presenting Bank in accordance with the provisions of Clause 5.4 of the
Agreement (Utilisation Request by the Presenting Bank) for the purpose of
financing an Acquisition Payment.
3. We wish to utilise a Loan on the following terms:
Proposed Utilisation Date: [relevant Settlement Date]
Facility to be utilised: [Facility A]/[Facility B]/[Facility C]
Currency of Loan: EUR
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
4. This Utilisation Request constitutes a confirmation by the Company that
each condition specified in [Clause 4.2(a)/Clause 4.2(b)/Clause
4.2(c)/Clause 4.3(b)/Clause 4.3(c)/Clause 4.3(d)] is satisfied on the date
of this Utilisation Request.
5. The proceeds of this Loan should be credited to [Settlement Account].
6. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of the Presenting Bank]
- 94 -
B- UTILISATION REQUEST FOR OTHER LOANS THAN ACQUISITION LOANS
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 16,000,000,000 FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business
Day, the next Business Day)
Facility to be utilised: Facility C
Currency of Loan: [ ]
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.4 (Conditions
precedent to Utilisation under Facility C for other purposes than
financing an Acquisition Payment) is satisfied on the date of this
Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of relevant Borrower]
- 95 -
PART II
SELECTION NOTICE
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 16,000,000,000 FACILITY AGREEMENT
DATED [ ] (THE " AGREEMENT")
1. We refer to the Agreement. This is the Selection Notice. Terms defined in
the Agreement have the same meaning in this Selection Notice unless given
a different meaning in this Selection Notice.
2. We request that Interest Periods under Facility A Loans have a duration of
[2/3/6] months as from the next Interest Period beginning immediately
after the date of this Selection Notice until the Facility A Final
Maturity Date.
3. We request that Interest Periods under Facility B Loans have a duration of
[2/3/6] months as from the next Interest Period beginning immediately
after the date of this Selection Notice until the Facility B Final
Maturity Date.
4. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
the Company
- 96 -
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank. Mandatory Costs will be charged
only if and to the extent that the applicable Lender certifies that such
costs are effectively and commonly charged by that Lender to the vast
majority of its customers in connection with facilities of similar size to
the Facility.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
ADDITIONAL COST RATE) for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender in
its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB+C(B-D)+E x 0.01
------------------ per cent. per annum
100-(A+C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost and, if the Loan is an Unpaid Sum, the
additional rate of interest specified in paragraph (a) of
clause 9.7 (Default interest)) payable for the relevant
Interest Period on the Loan.
- 97 -
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under
the Fees Rules and is calculated by the Agent as being the
average of the most recent rates of charge supplied by the
Reference Banks to the Agent pursuant to paragraph 7 and
expressed in pounds per L1,000,000.
5. For the purposes of this Schedule:
(a) ELIGIBLE LIABILITIES and SPECIAL DEPOSITS have the meanings given to
them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) FEES RULES means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the
acceptance of deposits;
(c) FEE TARIFFS means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee
or zero rated fee required pursuant to the Fees Rules but taking
into account any applicable discount rate); and
(d) TARIFF BASE has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting D
from B shall be taken as zero. The resulting figures shall be rounded to
four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Agent, the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Rules in respect of the
relevant financial year of the Financial Services Authority (calculated
for this purpose by that Reference Bank as being the average of the Fee
Tariffs applicable to that Reference Bank for that financial year) and
expressed in pounds per L1,000,000 of the Tariff Base of that Reference
Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information on
or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
- 98 -
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 and on the assumption that, unless a Lender notifies
the Agent to the contrary, each Lender's obligations in relation to cash
ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with a Facility Office in the
same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 is true and
correct in all respects.
11. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8.
12. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
13. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
- 99 -
SCHEDULE 5
FORM OF TRANSFER AGREEMENT
This Transfer Agreement is made on [ ]
BETWEEN:
(1) [ ] (the "EXISTING LENDER")
AND:
(2) [ ] (the "NEW LENDER")
WHEREAS:
(A) The Existing Lender has entered into a euro term loan facility in an
aggregate amount equal to [...] (figures and letters), a euro term loan
facility in an aggregate amount equal to [...] (figures and letters) and a
multicurrency revolving loan facility in an aggregate amount equal to
[...] (figures and letters) under a facility agreement dated [...] April
2004, between the Company, the Financial Institutions listed in Part II of
Schedule 1 to that Facility Agreement, BNP Paribas and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Products acting as Mandated Lead Arrangers, and BNP Paribas acting
as Agent of the Lenders (the "Facility Agreement").
[The Additional Borrowers listed in Schedule 1 attached to this Transfer
Agreement have become "Additional Borrowers" in accordance with clause
24.2 of the Facility Agreement (Additional Borrowers).]
(B) The Existing Lender wishes to transfer and the New Lender wishes to
acquire [all] [the part specified in Schedule 2 of this Transfer
Agreement] of the Existing Lender's Commitment, rights and obligations
referred to in Schedule 2 to this Transfer Agreement.
(C) Terms defined in the Facility Agreement have the same meaning when used in
this Transfer Agreement.
IT IS AGREED AS FOLLOWS:
1. The Existing Lender and the New Lender agree to the transfer (cession) of
[all] [the part specified in Schedule 2 of this Transfer Agreement] of the
Existing Lender's Commitment, rights and obligations referred to in
Schedule 2 to this Transfer
- 100 -
Agreement in accordance with Clause 23.5 of the Facility Agreement
(Procedure for transfer).(a)
2. The proposed Transfer Date is [...].
3. The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 30.2 (Addresses) are
set out in Schedule 2 of this Transfer Agreement.
4. The New Lender acknowledges the limitations on the Existing Lender's
liabilities set out in paragraph (c) of Clause 23.4 (Limitation of
responsibility of Existing Lenders) of the Facility Agreement.
5. The New Lender confirms to the other Finance Parties represented by the
Agent that it will assume the same obligations to those Parties as it
would have been under if it was an Original Lender
6. This Transfer Agreement is governed by French law. The Tribunal of
Commerce of Paris shall have jurisdiction in relation to any dispute
concerning it.
SCHEDULE 1
NAME OF ADDITIONAL BORROWERS
SCHEDULE 2
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments]
[Existing Lender] [New Lender]
By: By:
This Transfer Agreement is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
--------------------------------------------------------------------------------
(a) The New Lender may, in the case of a transfer of rights by the Existing
Lender under this Transfer Agreement, if it considers it necessary to make
the transfer effective as against third parties, arrange for it to be
notified by way of signification to the Obligors in accordance with
article 1690 of the French Code Civil.
- 101 -
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 16,000,000,000 FACILITY AGREEMENT DATED [ ] APRIL 2004
(THE "FACILITY AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms defined in
the Agreement have the same meaning in this Accession Letter unless given
a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Borrower and to be bound by
the terms of the Facility Agreement as an Additional Borrower pursuant to
Clause 24.2 (Additional Borrowers) of the Agreement. [Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter is governed by French law.
[Company] [Subsidiary]
Accepted by the Agent
- 102 -
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 16,000,000,000 FACILITY AGREEMENT DATED [ ] APRIL 2004
(THE "FACILITY AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined in
the Agreement have the same meaning in this Resignation Letter unless
given a different meaning in this Resignation Letter.
2. Pursuant to Clause 24.3 (Resignation of a Borrower), we request that
[resigning Borrower] be released from its obligations as a Borrower under
the relevant Finance Document.
3. We confirm that:
(a) no Default is continuing or would result from the acceptance of this
request; and
(b) no amounts remains due by the [resigning Obligor] under any Finance
Documents. *
4. This Resignation Letter is governed by French law.
[Company] [Subsidiary]
By: By:
--------------------------------------------------------------------------------
* Insert any other conditions required by the Agreement.
- 103 -
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: BNP Paribas as Agent
From: The Company
Dated:
Dear Sirs,
SANOFI-SYNTHELABO - EUR 16,000,000,000 FACILITY AGREEMENT DATED [ ] APRIL 2004
(THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Compliance Certificate as
such term is defined in the Facility Agreement. Terms defined in this
Compliance Certificate shall have the meanings ascribed to them in the
Facility Agreement unless given a different meaning in this Compliance
Certificate.
2. We confirm that: [Insert details of covenants to be certified]
3. [We confirm that no Default is continuing.]*
Signed: ...
..................
Chief Financial Officer or Chief Executive Officer of
Sanofi-Synthelabo
--------------------------------------------------------------------------------
* If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it.
- 104 -
SCHEDULE 9
EXISTING SECURITY
NONE
- 105 -
SCHEDULE 10
FORM OF CONFIDENTIALITY UNDERTAKING
[LETTERHEAD OF SELLER/SELLER'S AGENT/BROKER]
To:
[insert name of Potential
Purchaser/Purchaser's
agent/broker]
Re: THE AGREEMENT
BORROWER: SANOFI-SYNTHELABO
DATE: [ ]
AMOUNT: EUR 16,000,000,0000
AGENT: BNP PARIBAS
Dear Sirs,
We understand that you are considering [acquiring] /[arranging the acquisition
of] an interest in the Facility Agreement (the "ACQUISITION"). In consideration
of us agreeing to make available to you certain information, by your signature
of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that
would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of any
member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Purchaser Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Purchaser
Group;
- 106 -
[(b) subject to the requirements of the Agreement, in accordance with the
Permitted Purpose so long as any prospective purchaser has delivered
a letter to you in equivalent form to this letter;]
[(b/c)](c) subject to the requirements of the Agreement, to any person to
(or through) whom you assign or transfer (or may potentially assign
or transfer) all or any of the rights, benefits and obligations
which you may acquire under the Agreement or with (or through) whom
you enter into (or may potentially enter into) any sub-participation
in relation to, or any other transaction under which payments are to
be made by reference to, the Agreement or the Borrowers or any
member of the Group so long as that person has delivered a letter to
you in equivalent form to this letter; and
[(c/d)](c) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory or
regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the Purchaser Group are listed or (iii) where required by the laws
or regulations of any country with jurisdiction over the affairs of
any member of the Purchaser Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)](c) or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2[(c)/(d)](c) above.
5. Continuing Obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (a) if you become a party to or
otherwise acquire (by assignment or sub-participation) an interest, direct
or indirect, in the Agreement or (b) twelve months after you have returned
all Confidential Information supplied to you by us and destroyed or
permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or
destroyed).
6. No Representation, Consequences of Breach, etc. You acknowledge and agree
that:
(a) neither we, [nor our principal] nor any member of the Group nor any
of our or their respective officers, employees or advisers (each a
"RELEVANT PERSON") (i) make any representation or warranty, express
or implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information
or any other information supplied by us
- 107 -
or the assumptions on which it is based or (ii) shall be under any
obligation to update or correct any inaccuracy in the Confidential
Information or any other information supplied by us or be otherwise
liable to you or any other person in respect to the Confidential
Information or any such information; and
(b) we [or our principal](d) or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person may be granted an injunction
or specific performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc. This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
subject of this letter. No failure or delay in exercising any right, power
or privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between us.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter are
given to us and (without implying any fiduciary obligations on our part)
are also given for the benefit of [our principal,](d) the Borrowers and
each other member of the Group.
10. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter may
be enforced and relied upon only by you and us.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any
member of the Group to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with the laws of France and the parties submit to
the non-exclusive jurisdiction of the French courts.
12. Definitions In this letter (including the acknowledgement set out below)
terms defined in the Agreement shall, unless the context otherwise
requires, have the same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to either
Borrower, the Group, the Facility Agreement and/or the Acquisition
provided to you by us or any of our affiliates or advisers, in whatever
form, and includes information given orally and any document, electronic
file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes
information that (a) is or becomes public knowledge other than as a direct
or indirect result of any breach of this letter or (b) is known by you
before the date the
- 108 -
information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you thereafter, other than from a source which
is connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of confidentiality;
"GROUP" means Borrower and each of its holding companies and subsidiaries
and each subsidiary of each of its holding companies;
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing on
information to a prospective purchaser for the purpose of](b) considering
and evaluating whether to enter into the Acquisition; and
"PURCHASER GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies.
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
...................................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
...................................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
- 109 -
SCHEDULE 11
TIMETABLES
LOANS IN EURO LOANS IN AN OPTIONAL
CURRENCY
Delivery of a duly completed 11 a.m Paris time 11 a.m Paris time
Utilisation Request (Clause 5.1 3 Business Days 3 Business Days prior to
(Utilisation under Facility A prior to the the proposed Utilisation
and Facility B), Clause 5.2 proposed Utilisation Date
(Utilisation under Facility C Date
for the purpose of financing an
Acquisition Payment) or Clause
5.3 (Utilisation under Facility
C for other purposes than
financing an Acquisition
Payment).
Agent determines (in relation N/A 11 a.m London time
to a Utilisation) the Base 3 Business Days prior to
Currency Amount of the Loan, if the proposed Utilisation
required under Clause 5.5 Date
(Lenders' participation)
Agent notifies the Lenders of Promptly upon Promptly upon receipt from
the Loan in accordance with receipt from the the Borrower
Clause 5.5 (Lenders' Borrower
participation)
Agent receives a notification N/A Quotation Day as of 9 a.m.
from a Lender under Clause 6.2 Paris time
(Unavailability of a currency)
- 110 -
SCHEDULE 12
FORM OF GUARANTEE
FIRST DEMAND GUARANTEE (GARANTIE A PREMIERE DEMANDE) BETWEEN:
(1) SANOFI-SYNTHELABO, a French company whose registered office is at ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number
395 030 844 RCS Paris, and represented by [ ], duly authorised for the
purposes hereof,
(hereinafter, the GUARANTOR)
(2) BNP PARIBAS, a French company whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered under identification number
662 042 449 RCS Paris, acting as agent for the account and on behalf of
the Lenders (as defined below), and represented by [ ], duly authorised
for the purposes hereof,
(hereinafter, the AGENT)
WHEREAS:
(A) On [ ] April 2004, the Guarantor has entered into a EUR 16,000,000,000
facility agreement (the FACILITY AGREEMENT) with inter alia BNP Paribas
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Products as mandated lead arrangers, underwriters
and joint-book runners, BNP Paribas and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Products as
original lenders and BNP Paribas as agent.
(B) Pursuant to an accession letter entered into on the date hereof between
the Additional Borrower (as defined below), the Guarantor and the Agent
(the ACCESSION LETTER), the Additional Borrower has acceded to the
Facility Agreement and is therefore entitled to borrow up to a maximum
amount of EUR [ ] (or its equivalent in certain other currencies) under
the Facility Agreement.
(C) The accession of the Additional Borrower has been made on the condition
that the Guarantor enters into this guarantee undertaking (the GUARANTEE)
upon the following terms and conditions.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
In this Guarantee except to the extent that the context requires
otherwise:
ADDITIONAL BORROWER means [name and description of the relevant Additional
Borrower];
LENDER means any financial institution which is a lender from time to time
under the Facility Agreement (whether originally or following a transfer
or an assignment made in accordance with the provisions of the Facility
Agreement).
- 111 -
2. GUARANTEE
(a) The Guarantor irrevocably undertakes in favour of the Agent (for the
benefit of the Lenders) to pay to it, upon first demand and in accordance
with the terms and conditions set out below, any sums up to EUR [ ](b) (or
the equivalent thereof in any other currency) as claimed under the notice
referred to below.
(b) The amounts referred to above shall be payable by the Guarantor to the
Agent upon first demand from the Agent and such demand shall be made by
way of a written notice sent to the Guarantor in the form set out in the
Schedule hereto. The Guarantor shall pay such amounts to the Agent within
3 business days following receipt of the aforementioned notice.
(c) The Agent shall be entitled to make a single or several calls to the
Guarantor under this Guarantee, subject to not exceeding the overall
maximum amount as provided in Clause 2.(a).
(d) This Guarantee constitutes an independent, irrevocable and unconditional
undertaking (garantie autonome a premiere demande) by the Guarantor, who
expressly waives the right to rely on any exception whatsoever, arising
out of the relations between the Agent and/or the Lenders and the
Additional Borrower, for the purpose of deferring or releasing itself from
the performance of its obligations under this Guarantee.
3. NO IMPAIRMENT
As a result of the independent nature of this Guarantee, the Guarantor's
obligations hereunder shall in no way be altered, cancelled, reduced or
deferred, and the Guarantor shall not be released from performing such
obligations, by any of, but not limited to, the following events:
(a) The nullity, termination, cancellation or expiry of the Facility
Agreement or any of its provisions;
(b) any extension or renewal of the Facility Agreement, or any amendment
to any of its provisions, or
(c) any delay in exercising, failure to exercise or waiving by the Agent
and/or the Lenders of any right or means of recourse available to
each of them under the terms of the Facility Agreement.
4. SUBROGATION/SUBORDINATION
(a) Upon payment of any amounts to the Agent under this Guarantee, the
Guarantor may, at its request, be subrogated up to the relevant amount
paid (and subject to the terms of Clause 4.(b) below), at its expense and
at its own risk, in the rights of the Lenders as against the Additional
Borrower pursuant to the Facility Agreement.
(b) All rights of, and/or means of recourse available to, the Guarantor as
against the Additional Borrower as a result of the subrogation described
in Clause 4.(a), or under its direct rights (if any) against the
Additional Borrower, shall be subordinated to the Lenders' rights against
the Additional Borrower arising under the Facility Agreement and shall be
deferred until such time as each Lender confirms that it has
--------------------------------------------------------------------------------
(b) Being 115% of the maximum amount referred to in Whereas (B).
- 2 -
received all sums payable to it by the Additional Borrower and the
Additional Borrower has ceased to be an Additional Borrower under the
Facility Agreement.
(c) The Guarantor undertakes to collect, upon request from the Agent and to
the extent necessary to pay any amounts claimed under this Guarantee and
in order to give full effect to the terms contained in Clause 4.(b), all
amounts (or a portion thereof) payable to the Guarantor by the Additional
Borrower and to repay all or a portion of such collected amounts to the
Agent.
5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
(a) The Guarantor represents and warrants to the Agent that:
(i) As from the date on which the Guarantor acquires control over the
Additional Borrower, it will be fully aware of the prospects and
condition of the Additional Borrower's finances and assets;
(ii) It is a corporation, duly incorporated and validly existing under
the laws of France and it has the power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry
into, performance and delivery of the Guarantee and the transactions
contemplated by the Guarantee (including the authorisation by its
board of directors in accordance with article L.225-35 of the French
Code de Commerce).;
(iii) Subject to Clause 18.15 of the Facility Agreement (Non
Applicability), delivery of the Accession Letter constitutes
confirmation by the Guarantor that the Repeating Representations (as
defined under the Facility Agreement) are true and correct in
relation to the Additional Borrower as at the date of delivery as if
made by reference to the facts and circumstances then existing.
(b) Each of the aforementioned representations and warranties shall remain in
force and shall continue to be effective from the date of execution of
this Guarantee until the complete payment or discharge of all amounts
payable under this Guarantee.
6. FURTHER UNDERTAKINGS OF THE GUARANTOR
For the duration of this Guarantee and until all sums payable under this
Guarantee have been paid and all other obligations on the Guarantor under
this Guarantee have been satisfied, the Guarantor undertakes:
(a) to hold (directly or indirectly) at least 50.01% of the capital and voting
rights in the Additional Borrower (a "CONTROLLING STAKE") for so long as
there are loans outstanding under the Facility Agreement to the Additional
Borrower and unless such loans are repaid in full on or prior to the date
on which the Guarantor ceases to hold directly or indirectly a Controlling
Stake;
(b) to provide the Agent with any additional information or estimates which
the Agent may reasonably require from time to time in accordance with
Clause 19.4 of the Facility Agreement.
7. TAX
If, for any reason, the Guarantor has to deduct, withhold or levy any
amount from the sums payable by it under this Guarantee, such sums shall
to the extent permitted
- 3 -
by French Law be increased by the amount necessary to ensure that each
Lender receives, after any such deduction, withholding or other levy, a
net amount equal to that which it would have received if no such
deduction, withholding or levy had been made.
8. TERM - NOTICES
(a) This Guarantee shall terminate on 30 June 2009 or on such earlier date as
the Agent (acting on the instructions of the Lenders) may specify in a
notice of release. Any calls received after such date shall be
inoperative.
(b) Any communication to be made under or in connection with this Guarantee
shall be made in writing and, unless otherwise stated, may be made by fax,
letter or telex.
(c) The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each party
for any communication or document to be made or delivered under or in
connection with the Guarantee is:
(i) in the case of the Company:
Address: Sanofi-Synthelabo
[Address]
[Address]
Fax number: +[ ][_________]
Attention: [____________]
(ii) in the case of the Agent:
Address: BNP Paribas
[Address]
[Address]
Fax number: +[ ][_________]
Attention: [____________]
Or such other address as may be notified by either party to the other from time
to time.
9. MISCELLANEOUS PROVISIONS
(a) This Guarantee shall automatically benefit to each Lender under the
Facility Agreement without any notice or carrying of any formality.
(b) The Agent shall deliver a notice of release to the Guarantor when the
Additional Borrower ceases to be an Additional Borrower pursuant to Clause
24.3(b) of the Facility Agreement (Resignation of a Borrower).
10. GOVERNING LAW / JURISDICTION
(a) This Guarantee is governed by French law.
(b) The Tribunal de Commerce de Paris has exclusive jurisdiction to settle any
dispute arising out of or in connection with this Guarantee (including a
dispute regarding the existence, validity or termination of this
Guarantee) (a DISPUTE). This clause is for the benefit of the Agent and
the Lenders only. As a result, neither the Agent nor the Lenders shall be
prevented from taking proceedings relating to a Dispute in any
- 4 -
other courts with jurisdiction. To the extent allowed by law, the Agent
and/or the Lenders may take concurrent proceedings in any number of
jurisdictions.
Signed in [ ] in [ ] originals
On [ ]
------------------------------ ---------------------------
SANOFI-SYNTHELABO BNP PARIBAS
Represented by: [ ] Represented by: [ ]
- 5 -
ANNEXE 1
FORM OF NOTICE
[Letterhead of the Agent]
To: [the Guarantor]
[ ]
[ ]
Attention:
[Date]
Dear Sirs,
We refer to the first demand guarantee dated [-] entered into by your
company for the benefit of the Lenders under the Facility Agreement.
We request that you forthwith pay us (for the account of the Lenders) [currency
and amount] by way of a credit transfer to the following account: [-].
For information purposes only, we certify that an amount at least equal to the
amount claimed under this notice is due and payable but unpaid as at the date
hereof by [name of the relevant Additional Borrower] under the Facility
Agreement.
Yours faithfully,
[the Agent]
- 6 -
SCHEDULE 13
MATERIAL SUBSIDIARIES
1. Sanofi Winthrop Industries
2. Sanofi-Synthelabo Inc
3. Sanofi-Synthelabo France
4. Sanofi-Synthelabo Gmbh
- 7 -
SIGNATORIES
THE COMPANY
SANOFI-SYNTHELABO SA
BY: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
THE MANDATED LEAD ARRANGERS, UNDERWRITERS AND JOINT-BOOK RUNNERS
BNP PARIBAS SA
BY: MICHEL KONCZATY AND ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS LLC
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
THE ORIGINAL LENDERS
BNP PARIBAS SA
BY: MICHEL KONCZATY AND ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS LLC
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
THE AGENT
BNP PARIBAS SA
BY: MICHEL KONCZATY AND ▇▇▇▇▇ ▇▇▇▇▇▇▇
THE PRESENTING BANK
BNP PARIBAS SA
BY: THIERRY VARENE AND ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- 8 -