LOAN AGREEMENT
EUR 50,000,000
CEGEDIM
borrower
CREDIT LYONNAIS
AND ANY BANK TO WHICH CREDIT LYONNAIS MAY ASSIGN PART OF THE LOAN
HEREAFTER " BANKS "
Borrower
And
CREDIT LYONNAIS
Arranger and Agent
On April 18 2003
-Page 1-
SUMMARY
NAMES OF THE PARTIES - PREAMBLE 4
===============================================================================================================
ARTICLE 1 - DEFINITIONS 5
ARTICLE 2 - FEATURES OF THE LOAN 7
ARTICLE 3 - USE OF THE LOAN 9
ARTICLE 4 - COMMISSION - INTEREST 11
ARTICLE 5 - RENUNCIATION OF THE LOAN 13
ARTICLE 6 - EARLY REPAYMENT 13
ARTICLE 7 - OCCURRENCE OF NEW CIRCUMSTANCES 14
ARTICLE 8 - PAYMENTS 15
ARTICLE 9 - COMPENSATION 16
ARTICLE 10 - EQUALIZATION OF PAYMENTS 16
ARTICLE 11 - DECLARATIONS 17
ARTICLE 12 - COMMITMENTS OF BORROWER 19
ARTICLE 13 - ACCELERATION OF MATURITY 22
ARTICLE 14 - DELAY INTEREST 24
ARTICLE 15 - AGENT 25
ARTICLE 16 - ABSENCE OF JOINT AND SEVERAL LIABILITY 27
ARTICLE 17 - ASSIGNMENT - SECURITIZATION 27
ARTICLE 18 - NOTICES 28
ARTICLE 19 - ABSENCE OF RENUNCIATION 28
ARTICLE 20 - TOTAL EFFECTIVE RATE 28
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ARTICLE 21 - TAXES AND FEES 28
ARTICLE 22 - SECURITIES 28
ARTICLE 23 - SEVERABILITY 29
ARTICLE 24 - PROPER LAW -FORUM FOR LITIGATION 29
ARTICLE 25 - CHOICE OF RESIDENCE 29
APPENDIX 1 - MODEL DRAWDOWN SLIP 30
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APPENDIX 2 - DEFINITION OF RATIOS 31
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APPENDIX 3 - MODEL CERTIFICATE OF HYPOTHECATION OF ACCOUNT OF FINANCIAL INSTRUMENTS 33
===============================================================================================================
APPENDIX 4 - MODEL DEBT REPURCHASE DEED BY WAY OF GUARANTEE 40
===============================================================================================================
APPENDIX 4(A) - MODEL ACT OF DELEGATION 46
===============================================================================================================
APPENDIX 5 - MODEL DEED OF ASSIGNMENT 48
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-Page 3-
LOAN AGREEMENT
BETWEEN THE UNDERSIGNED:
1(degree)) THE CEGEDIM CORPORATION, A LIMITED CORPORATION WITH CAPITAL OF
8,891,004.61 (EURO), OF WHICH THE MAIN OFFICE IS IN BOULOGNE
(92100) 127 TO ▇▇▇ ▇▇▇ ▇'▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 350.422.622 - RCS
NANTERRE, REPRESENTED BY ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ DULY ENTITLED
UNDER THE TERMS OF THE POWERS CONFERRED ON HIM BY A MEETING OF
THE BOARD OF DIRECTORS ON APRIL 10 2003,
Hereafter called " Borrower ",
of the first part,
2(degree)) CREDIT LYONNAIS, A LIMITED CORPORATION WITH CAPITAL OF
1,808,394,053 (Euro), WHOSE MAIN OFFICE IS IN LYON, ▇▇ ▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ AND HEADQUARTERS IS IN PARIS (75002), 19
BOULEVARD DES ITALIENS, SIREN 954 509 741 - RCS LYON,
REPRESENTED BY ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, UNDER THE TERMS OF A POWER
RECEIVED FOR THIS PURPOSE.
As well as any credit institution to which Credit will
Lyonnais may assign part of the loan
Hereafter called as a whole but without joint and several
liability between them " Banks ", and individually " Bank ",
of the second part,
3(degree)) CREDIT LYONNAIS, A LIMITED CORPORATION WITH CAPITAL OF
1,808,394,053 (Euro), WHOSE MAIN OFFICE IS IN LYON, ▇▇ ▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ AND THE CENTRAL SEAT IN PARIS (75002), ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, SIREN 954 509 741 - RCS LYON, AS AGENT
FOR THIS LOAN AGREEMENT, REPRESENTED BY ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
UNDER THE TERMS OF A POWER RECEIVED FOR THIS PURPOSE,
Hereafter called "Agent ".
of the third part.
AFTER RECALLING THAT:
- Borrower wishes to undertake operations of external growth by
acquisition of loans and/or shares of companies operating in borrower's sphere
of activity.
- Borrower requested arranger to procure financing for such
operations. Arranger agreed to provide initial financing for Borrower by itself,
thereafter to syndicate part of the loan, under the terms and conditions
hereafter agreed
-Page 4-
IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
The terms and expressions starting with a capital letter shall have, for
purposes of this Agreement the following meaning:
AGENT: denotes Credit Lyonnais in this capacity by
virtue of this Agreement or its possible
successor under the conditions envisaged in
article 15.8 of this Agreement .
ARRANGER: denotes Credit Lyonnais in this capacity by
virtue of this Agreement .
DRAWDOWN SLIP: denotes a note in accordance with the model
shown in Appendix 1 of this Agreement .
BANK(s): denotes Credit Lyonnais as well as any
credit institution to which later on would
be assigned and transferred all or part of
the rights and obligations of Credit
Lyonnais in accordance with the stipulations
of article 17.2 of this Agreement .
REFERENCE BANKS: denotes Credit Lyonnais, BNP Paribas and
Societe Generale.
CASE OF ACCELERATION OF MATURITY: denotes any event or any failure of Borrower
as enumerated in article 13 of this
Agreement .
AGREEMENT: denotes this Loan Agreement, its appendices
as well as, if necessary, any endorsements
which form or shall form an integral part
thereof.
LOAN: denotes the supply of a loan in the sum of
50,000,000 (Euro) (fifty million euros)
which CrEDIT Lyonnais undertakes to place at
the disposal of Borrower under the terms and
conditions of this Agreement and whose
amount will be gradually and automatically
reduced, at each Reduction Date, in
accordance with the stipulations of article
2.4 of this Agreement .
EXECUTION DATE: denotes the date of signature of this
Agreement .
REDUCTION DATE: denotes each date mentioned in article 2.4
of this Agreement corresponding to an
amortisation period of the loan.
FINANCIAL(s) DEBT(s): denotes:
(i) all loans and comparable debts
within the meaning of the Chart of
Accounts,
(ii) any obligation of payment
contracted under any financial
transfer-lease or lease, leasing
agreement,
(iii) any obligation of deferred payment
contracted at the time of
acquisition of any asset,
-Page 5-
(iv) current bank lending,
(v) any contracted debt, on a purely
principal or additional basis,
under any obligation to provide
security, surety or guarantee given
by Borrower or a Subsidiary
corporation, in order to guarantee
the Financial Debt contracted by a
third party,
(vi) any debt of unpaid funds under any
time-limited financial instrument
(within the meaning of the article
L 211-1 of the Monetary and
Financial Code) being specified
that only the payable net value by
the debtor will be taken into
account based on the assumption
that the agreement concerned would
provide for a compensation
capability.
COMMITMENT: denotes for Credit Lyonnais and each Bank to
which parts of this Loan has been assigned,
the maximum total amount that each one has
committed to place at the disposal of
Borrower in the form of drawdowns, such
amount to be reduced at each Reduction Date,
in accordance with the provisions of article
2.4 of this Agreement ,
TOTAL COMMITMENT: denotes the total of all commitments
hereunder, i.e. as at the Execution Date,
fifty million euros.
EONIA: (Euro OverNight Index Average or TEMPE, Taux
Moyen Pondere en Euros) denotes the
day-to-day rate, calculated by the European
Central Bank based on a weighted average of
all the transactions from day to day of
unguaranteed loans carried out on the
interbank market of the euro zone by the
banks taking part in the sample, as
disseminated by the Banking Federation of
the European Union and published the next
working day (within the meaning of the
Target calendar).
EURIBOR: (Euro Interbank Offered Rate or TIBEUR, Taux
Interbancaire Offert en Euros) denotes the
average rate, rounded to three decimal
points, calculated and disseminated by the
Banking Federation of the European Union, at
which the interbank deposits in euros for
one period similar to that of the drawdown
are offered by BANKS OF FIRST SIGNATURE
within the zone euro, at 11.00 hours
(Brussels time), two (2) working Days before
the day of drawdown.
SUBSIDIARIES: denotes any Corporation controlled by
Borrower within the meaning of the article L
233-3 of the Commercial Code as well as any
Corporation which Borrower may hold a
controlling share in future.
CEGEDIM GROUP denotes Borrower and its subsidiaries.
WORKING DAY: denotes any entire day, except for Saturday
and Sunday, on which the banks are open all
day in Paris, and on which the TARGET system
is in operation.
-Page 6-
MAJORITY OF BANKS : denotes those banks of which the total
commitments constitute at any given moment
more than 66 % of the Total commitment.
MARGIN: means 75 base points (0.75%) per year,
capable of adjustment by virtue of the
ratios " Ratio G " and " Ratio L " in
accordance with the provisions of article
4.3.1 of this Agreement .
USE PERIOD : denotes the period between the Execution
Date and the date of first drawdown and at
the latest, the end of the sixth month
following the Execution Date.
CONSOLIDATION PERIOD : denotes the period between the date of first
drawdown within the Use Period and the date
of the 5th anniversary of this drawdown.
RATIO C: denotes the result of the EBITDA ratio on
Service of the Consolidated Debt, calculated
based on the group account of Borrower, as
defined in Appendix 2 of this Agreement .
RATIO G: denotes the result of the Net Indebtedness
ratio, Consolidated on Own Consolidated
Capital funds, calculated based on the group
account of Borrower, as defined in Appendix
2 of this Agreement .
RATIO L: denotes the result of the Net Indebtedness
Ratio consolidated on the EBITDA, calculated
based on the group account of Borrower, as
defined in Appendix 2 of this Agreement .
FINANCIAL RATIOS: denotes Ratio C, Ratio G and Ratio L.
SECURITY(ies): means any privilege, mortgage, pledge,
hypothecation or other valuable security of
any nature whatever, any transfer of
property by way of guarantee (loan
assignment by bordereau or form under the
Dailly Act, cash pledge...), any retention
of title clause or right of lien and, more
generally, any other right conferring on its
recipient priority payment.
TARGET: denotes the system of payment known as
'Trans European Automated Real time Gross
Settlement Express Transfer'.
DRAWDOWNS: any loan of a sum of money for the amount
and the duration indicated on the drawdown
slip.
ARTICLE 2 - FEATURES OF THE LOAN
2.1 Loan amount
Credit Lyonnais grants Borrower, who hereby accepts, under the terms
and conditions stated hereafter, a loan to a maximum total amount of
50,000.000 euros (fifty million euros)
2.2 Loan purpose
The loan is intended to enable Borrower:
-Page 7-
(i) (i) in the sum of 40,000,000 (Euro) (forty million euros) to make a
loan to the JIVAGO ACQUISITION CORP, state of incorporaTION Delaware,
IRS Employer Identification No 3645374, address Corporation Trust
Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ held to a total
value of 100% by Borrower, whose single object will be the purchase of
Synavant Inc, state of incorporation Delaware, IRS Employer
Identification No. ▇▇-▇▇▇▇▇▇▇, address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇.
(ii) in the sum of 10,000,000 (Euro) (ten million euros) to finance the
purchase of 80% of the capital of a corporation which MUST have the
following characteristics:
a) To be an establishment or group of establishments located in
Europe, operating in the same sectors (principal activity in
technology and services related to medical IT intended for
health professionals and pharmaceutical laboratories) as the
Cegedim Group, provided the purchase price does not exceed
three (3) million euros, or
b) To be another establishment or group of establishments
complying with the following criteria:
- - to be located in a country within Western
Europe or a Member State of the OECD,
- - to conduct operations in the same sectors as
those defined in the paragraph (A) above,
- - to have a purchase price, free of any
indebtedness, in conformity with market value, or a maximum
EBIT multiple of 7 - 70% of sales net of tax,
- - of which most of the capital and voting
rights are acquired at the time of the purchase of the
establishment or group of establishments.
c) any other corporation, subject to prior agreement by the
Majority of Banks.
If the acquisition aimed at under (i) above is less than 40,000,000
(Euro) (forty million euros), the balance may be used uNDER the
conditions of (ii) referred to above.
Notwithstanding the preceding provisions, neither the Banks nor Agent
shall incur any liability with regard to the use of the amount of the
Loan.
2.3 TERM - REDUCTION OF THE LOAN
2.3.1 - TERM
The Loan will be usable for the Period of Use, to run from the date on
which the conditions stipulated in article 3.1 of this Agreement have
been fulfilled.
Any amount not used at the end of the Period of Use will be
definitively cancelled and cannot be used any further, the commitment
of each Bank being reduced to the amount owed.
The Loan, as from the Period of Consolidation, is authorized for one
five (5) year term.
2.3.2 - REDUCTION OF THE LOAN
The amount of the Loan will be gradually and automatically reduced up
to the following dates and for the following amounts:
-Page 8-
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REDUCTION DATE REDUCTION OF LOAN AMOUNT MAXIMUM LOAN AMOUNT
-------------------------------------------------------------------------------------------------
6 th month of Consolidation
Period 5,000,000 euros 45,000,000 euros
------------------------------------------------------------------------------------------------
12 th month of Consolidation
Period 5,000,000 euros 40,000,000 euros
------------------------------------------------------------------------------------------------
18 th month of Consolidation
Period 5,000,000 euros 35,000,000 euros
------------------------------------------------------------------------------------------------
24 th month of Consolidation
Period 5,000,000 euros 30,000,000 euros
------------------------------------------------------------------------------------------------
30 th month of Consolidation
Period 5,000,000 euros 25,000,000 euros
------------------------------------------------------------------------------------------------
36 th month of Consolidation
Period 5,000,000 euros 20,000,000 euros
------------------------------------------------------------------------------------------------
42 th month of Consolidation
Period 5,000,000 euros 15,000,000 euros
------------------------------------------------------------------------------------------------
48 th month of Consolidation
Period 5,000,000 euros 10,000,000 euros
------------------------------------------------------------------------------------------------
54 th month of Consolidation
Period 5,000,000 euros 5,000,000 euros
------------------------------------------------------------------------------------------------
60 th month of Consolidation
Period 5,000,000 euros 0 euros
------------------------------------------------------------------------------------------------
At each Reduction Date, Borrower will have to return the amount of
drawdowns incurred to the limit of the new ceiling thus fixed and the
commitment of each Bank will be reduced proportionally.
ARTICLE 3 - USE OF THE LOAN
3.1 Borrower is not permitted to use the Loan as long as the following
conditions, stipulated in favour of the Banks, have not been completely
fulfilled:
a) Borrower has supplied to Agent:
(i) the powers of attorney of the person(s) authorized to
act in the name and on behalf of Borrower for
purposes of concluding this Agreement;
(ii) a certified, up-to-date copy of its statutes;
(iii) a K (a) statement (extrait K bis) dated less than
fifteen (15) days previously;
(iv) a copy of its balance sheet and consolidated income
statement, as published most recently and certified
by its auditors as well as the medium-term, strategic
financing plan devised for the Cegedim Group;
(v) a copy of the entire documentation drafted for
purchase of the companies by means of the Loan,
including if necessary any guarantees of assets
and/or liabilities issued in favor of Borrower;
-Page 9-
(vi) a certificate of its Auditors attesting the accounts
as at December 31 2002 and stating that (i) Ratio C
exceeds 2.50 (two point five zero), (ii) Ratio G is
lower than 0.50 (zero point five zero), and (iii)
Ratio L is lower than 1.50 (one point five zero.
(vii) a legal opinion and a tax opinion, provided by law
firms within the United States of America validated
beforehand by Agent, considered to be satisfactory by
Agent relating to the litigation appearing in the
annual report relating to the 2002 fiscal year on
form 10 K as given to the SEC (Securities and
Exchange Commission) by Synavant Inc, state of
incorporation Delaware, IRS Employer Identification
No. ▇▇-▇▇▇▇▇▇▇, address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ being capable of
associating it with for legal purposes its former
majority shareholder, IMS Health state of
incorporation Delaware, IRS Employer Identification
No. ▇▇-▇▇▇▇▇▇▇, address ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ -▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇, and more particularly the IRI
Action and the taxation of "spin-offs"
b) No event of any legal, tax or financial nature with durable
unfavorable effects on the activity or profitability of
Borrower or its subsidiary companies or on its capacity to
meet its obligations by virtue of the Loan has occurred;
c) No case of accelerated maturity has occurred or is obviously
likely to occur;
d) No financial transaction will be announced or launched on the
financial markets and in a more general way, no other
transaction involving the opening of a credit, loan or credit
limit will be negotiated that could be capable in the opinion
of Agent significantly to affect the syndication of the Loan.
In the event that the conditions precedents stipulated above not have
been achieved in their entirety, at the latest 10 days after the
Execution Date, the Loan shall become null and void, the Banks being
definitively released from all the obligations which they will have
entered into under this Agreement .
3.2 Subject to the amount and term such as defined above, Borrower will
progressively use the Loan at its discretion as its needs arise under
the specific conditions stated hereafter.
Subject to the provisions of articles 3.1 and 12.1 of this Agreement ,
any drawdown will be subordinated to the following conditions
stipulated in favor of the Banks:
- that there is no failure in respect of any of the commitments
entered into by Borrower under this Agreement , unless such
failure has been remedied within the time limits set;
- that no case of accelerated maturity has occurred or is
obviously likely to occur;
- that the sum of the cumulative amount of drawdown incurred and
the amount of drawdown requested does not exceed, at the date
of drawdown , the maximum amount of the loan as defined in
article 2.4 of this Agreement;
- that the expiration date of the drawdown requested is not
later than the expiration date of the Loan, i.e. the date of
the 5th anniversary of the Consolidation Period;
- that Borrower has addressed to Agent, within the prescribed
time, a drawdown slip in conformity with the model shown in
Appendix 1 of this Agreement;
3.3 Each drawdown must be for an amount at least equal to 1,000,000 euros
and beyond this figure must be an entire multiple of 500,000 euros.
-Page 10-
The duration of each drawdown shall be, at the option of Borrower, one
(1), three (3) or six (6) months.
The number of drawdowns in progress and requested may not however in
any case exceed five (5).
Each drawdown must be the subject of a separate drawdown slip in
conformity with the model shown in Appendix 1 of this Agreement and
duly signed in the name of Borrower, the actual availability of the sum
drawn down only occurring on one Working Day. Each drawdown slip could
be made out only for one installment period only. Each drawdown slip
may be made out for a specific date only.
The drawdown slip must be sent to Agent, at the latest at 10 hours
(Paris time), three (3) Working Days before the day when Borrower
wishes to have the funds.
On the same day as receiving it, Agent shall communicate to the Banks
the content of the drawdown slip.
The drawdown slip will irrevocably commit Borrower who will be required
to accept payment of the funds corresponding to that drawdown, on the
conditions shown on the corresponding drawdown slip and under the terms
and conditions of this Agreement .
3.4 Any drawdown must be repaid at its expiration date, and the amount
repaid may then be borrowed again within the limits of the amount and
term of the Loan and under the terms and conditions of this Agreement .
ARTICLE 4 - FEES - INTEREST
4.1 UNDERWRITING FEE
Borrower shall pay to Arranger an underwriting fee whose amount and
methods of payment shall be agreed in separate correspondence.
The amount of this fee shall definitively remain entirely and firmly
with Arranger even in the event of non-realization of the conditions
precedent stipulated in article 3.1 of this Agreement .
4.2 HANDLING FEE
Borrower shall pay to agent a handling fee whose amount and methods of
payment shall be agreed in separate correspondence.
The amount of this fee shall definitively remain entirely and firmly
with Agent even in the event of non-realization of the conditions
precedent stipulated in article 3.1 of this Agreement .
4.3 AGENCY FEE
Borrower shall pay to Agent, for the sole benefit of the latter,
annually, in advance and by bank transfer, and for the first time at
the Execution Date, an agency fee in the sum of 1,500 euros net of tax.
4.4 NONUSE FEE
Borrower shall pay to the Banks, into the hands of Agent, a nonuse fee
of 30 base points (0.30%) per year, calculated, prorata temporis, on
the difference between on the one hand, the
-Page 11-
maximum amount of the Loan and, on the other hand, the amount of
drawdowns incurred, and based on a year of 360 days' duration.
The amount of this fee shall be paid, quarterly and in arrears, and for
the first time ninety (90) days after the execution date, by debit from
borrower's checking account, by Agent, who shall then distribute this
sum between the Banks in proportion to the amount of their commitment
in relation to the Total commitment.
The amount of the commission thus paid shall remain entirely and
definitively with the Banks even in the event of renunciation of the
Loan.
4.5 INTEREST
The interest applicable to each drawdown will be calculated based on
the number of exact days in relation to a period of 360 days. They
shall be payable to Agent, on behalf of the Banks, once expired, at the
expiration date of each drawdown. They shall be payable to Agent, on
behalf of the Banks, in arrears, at the expiration date of each
drawdown.
4.5.1 ADJUSTMENT OF MARGIN
The Margin shall be adjusted up or down in relation to the
Financial Ratios.
-----------------------------------------------------------------------------
MARGIN RATIO L RATIO G
-----------------------------------------------------------------------------
65 base points 2 < L < 2.50 ET 0.65 < G < 0.80
-----------------------------------------------------------------------------
60 base points 1.50 < L < 2 ET 0.50 < G < 0.65
-----------------------------------------------------------------------------
55 base points L < 1.50 And G < 0.50
-----------------------------------------------------------------------------
The first adjustment shall take place in response to the
results of the fiscal year ending on December 31 2003, with
effect from the first drawdown requested after the
communication to Agent of calculation of the Financial Ratios.
4.5.2 INTEREST RATE
The interest rate applicable to each drawdown will be equal to
the EURIBOR (or TIBEUR) rate for the period of drawdown,
increased by the Margin.
The rate thus determined two (2) Working Days before the day
of drawdown will be fixed throughout the duration of the said
drawdown.
4.5.3 NON-PUBLICATION OF THE EURIBOR
If the EURIBOR, as calculated and disseminated by the Banking
Federation of the European Union, ceased, for any reason
whatever, to be published, Agent shall notify thereof, without
delay and by any means, both Borrower and the Banks and the
following provisions shall apply:
- If a rate of comparable nature or equivalent were to
replace the EURIBOR, the former would immediately
apply to any new drawdowns carried out for a whole
number of months, the interest rate being equal to
this new rate increased by the Margin.
-Page 12-
- In the contrary case, the Banks and Borrower shall
negotiate on a different method of fixing a suitable
rate which must reflect the effective cost on the
interbank market of the Banks' association with
borrower. During this period of negotiation, Borrower
shall not be able to carry out any new drawdown. In
the absence of agreement between the parties within a
period of fifteen (15) days, the applicable interest
rate for new drawdowns shall equal the arithmetic
average (rounded, if necessary, up to a sixteenth of
a percent higher) of the rates offered by the
Reference Banks to first-tier banks, for deposits in
euros of an amount and term similar to the amount and
term of the drawdown, at 11.00 hours (Brussels time),
two (2) Working Days before the day of drawdown,
increased by the Margin.
ARTICLE 5 - RENUNCIATION OF THE LOAN
Borrower can at any time renounce all or part of the unused portion of the Loan
by letter sent to Agent and subject to a notice period of 10 (ten) days.
Any renunciation must be of a sum at least equal to 1,000,000 euros and exceed
an entire multiple of 1,000,000 euros This renunciation will be irrevocable and
will reduce definitively and by the same amount the level of the commitment of
each Bank in proportion to the amount of its relative commitment in proportion
to Total commitment.
Any early renunciation shall be applied to the amortization installments
furthest away in time, starting with the last, and will reduce, if applicable,
the term of the Loan.
On the other hand, any nonuse fee shall cease to be due on that portion of the
Loan renounced by Borrower, to run from expiration of the nonuse fee quarterly
period, during which the renunciation took effect.
ARTICLE 6 - EARLY REPAYMENT
6.1 INVOLUNTARY EARLY REPAYMENT
Borrower will have the facility to repay early all or part of the
amount of a drawdown subject to compliance with the following
conditions:
- Borrower must notify Agent beforehand by registered letter
with acknowledgement of delivery sent ten (10) working days
before the desired date of early repayment,
- The amount repaid early must at least equal 1,000,000 euros
and and beyond this figure must be an entire multiple of
500,000 euros.
- Any early repayment must be accompanied by payment of all the
interest accrued up to the date of early repayment on the
drawdown concerned as well as any payment of any related fees
and accessories.
6.2 COMPULSORY EARLY REPAYMENT
In the event of the occurrence of one of the following events:
- Transfer by Borrower of all or part of the rights of ownership
that it holds in any Subsidiary corporation for a cumulated
annual amount exceeding 1,000,000 euros, except in the case of
transfers excluded from this clause by the Majority of Banks,
-Page 13-
- Transfer by Borrower of all assets for a cumulated annual
amount net of all or any taxes, taxes and expenses over
5,000,000 euros or its equivalent value in any currency, where
this is not followed within 180 days at the latest by
reinvestment in assets connected with the activities of
Borrower,
- Partial or total transfer of the Jivago Corp Acquisition which
must acquire Synavant and/or of the one of the companies whose
acquisition was financed by the loan,
- Use by Borrower of any guarantee of assets and liabilities
issued in its favour, deduction being made (i) of any sum
requiring to be paid to any third party or parties that may
have met the expenses necessary to obtain payment of the sums
received in this regard and (ii) of any amount paid in order
to satisfy the obligations that were the subject of the
relevant use of the guarantee of assets and liabilities
insofar as these sums are used for this purpose as soon as
possible and within 180 days at the latest as from the date of
receipt of the aforesaid sums,
- Implementation by Borrower of a new capital increase by cash
subscription, or of a bond issue
Borrower must allocate the sums received for the purpose of any one of
the events aimed at above relation to early repayment of the Loan.
Any early repayment will be applied to the amortization instalments
furthest away in time, starting with the last, and will reduce, if
applicable, the term of the Loan.
ARTICLE 7 - OCCURRENCE OF NEW CIRCUMSTANCES
The financial conditions of the Loan were fixed in accordance with the rules
applicable at the execution date.
If, in consequence of a new legislative or regulatory provision, amendment of a
law, regulation, directive or any interpretation made thereof by any proper
authority entrusted with the application or interpretation of the same:
- The Banks shall be subject to any tax, levy, right or deduction, for
any purpose and for any reason whatsoever, on the principal of any sum
owed by Borrower to the Banks under the terms of this Agreement or the
banks shall suffer their taxation bases modified with regard to the
said sums (except for corporation tax),
- The Banks shall be subject to any measure of monetary, financial or
banking regulation, this measure involving a new charge or expense
relating directly to the Loan (for example reserves or mandatory
deposits, ratios of equity capital, liquidity or other items)
and if any one of the measures which precede or any other measure causes a
reduction in the amount of any sum received by the Banks under the terms of this
Agreement, or a reduction in the real yield of the Loan or, more generally,
renders this Agreement commercially less favourable to the banks, the following
provisions shall apply:
a) Agent shall notify Borrower in writing thereof. This notification shall
state the estimated amount of the new charge or expense as well as any
necessary compensation which must be accompanied by any justifying
document;
-Page 14-
b) The Banks and Borrower shall act in concert as soon as possible in
order to arrive at a solution making it possible to face the
difficulties which have occurred, in the spirit of co-operation which
prevails at the time of conclusion of this Agreement . During this
period of negotiation, Borrower shall not be permitted to carry out any
new drawdown under this Agreement;
c) If no solution can be found within thirty (30) days following receipts
by Borrower of the aforementioned notification, Borrower must:
- Either request the Banks to continue on with the Loan while
undertaking, however, to take complete responsibility as long
as the provisions noted above remain in effect, for the extra
costs that the Banks are required to incur in this regard
- Or carry out final repayment as well as payment of all the
amounts due to the Banks as principal, interest, commissions
or fees, expenses and accessories within ten (10) days as from
the expiration of the thirty (30) day period referred to
above, this Agreement then terminating automatically. Further,
Borrower must compensate the Banks for any losses they may
have suffered while liquidating or redeploying the deposits
acquired to finance all or part of the sums repaid by
Borrower, on presentation of a certificate stating the amount
of the compensation necessary, calculation of which shall bind
the parties except in the case of manifest error.
ARTICLE 8 - PAYMENTS
8.1 All payments in favor of Borrower under this Agreement shall be carried
out by each Bank by transfer clearing house to the account of Agent at
its regional headquarters, namely Direction Regionale Entreprises Ile
de France Sud Ouest n(degree)61345 L cle RIB 39, bank code 30002,
counter code 4153, under reference " CMT CEGEDIM ".
Subject to the implementation of the conditions precedent with regard
to the drawdowns stipulated in article 3.2 of this Agreement , Agent
shall pay the amounts it has thus received to Borrower, on the value
date of payment, to the separate account opened in its name at
Direction Regionale Entreprises Ile de France Sud Ouest of Agent.
This separate account is excluded from any open checking account in the
name of Borrower and is intended exclusively to record the entries
relating to drawdowns carried out and their repayment.
8.2 Any payment of the principal, interest and commissions or fees in
favour of the Banks shall be portable and must be carried out by
Borrower at Regional headquarters of agent, namely Direction Regionale
Entreprises Ile de France Sud Ouest, agent acting on behalf of the
Banks, by any means and in particular by debiting checking account
n(degree) 60436 B open in its name in the books of this branch of
Agent.
To this end, Borrower authorizes Agent irrevocably to debit the
checking account opened in its name with any sum due under the terms of
this Agreement and commits itself to place in this account sufficient
funds, in advance and available on the dates on which the said sums
fall due.
8.3 All payments and remittances provided for under this Agreement shall be
carried out so that the funds are available on the date fixed for the
aforementioned payment and value day of the payment.
8.4 ALL PAYMENTS SHALL BE CARRIED OUT ON A WORKING DAY. If the date on
which any sum due under the terms of this Agreement may be demanded
does not fall on a Working Day, the
-Page 15-
corresponding payment shall be deferred to the next Working Day, unless
this results in deferral of the payment to the next calendar month, in
which case the payment must be carried out on the last Working Day
preceding the date on which it is demanded initially envisaged and
Agent will modify in consequence any calculation of interests or
commissions or fees concerned.
8.5 The payment of any sum due from Borrower under the terms of this
Agreement shall be carried out net of any tax, deduction or levy of any
kind whatever, present or future. In the event that, pursuant to any
legislative or regulatory provision, a payment of interest or any other
income were to give rise to any deduction or tax, Borrower undertakes,
to the full extent permitted by the legislation in force, to increase
the amount to be paid so that after this deduction or tax, the Banks
shall receive the exact amount of the payment provided for in this
Agreement .
8.6 Each Bank, with regard to its own participation in the Loan, and Agent
for all drawdowns, will maintain in their respective books, according
to their usual practice, separate accounts on which the amounts of
principal, interest, commissions or fees and all other items shall be
carried forward, such items being owed to them as well as the amounts
paid. The said accounts shall be regarded as authoritative, except in
the case of manifest error, in relation to the amounts due under this
Agreement and in the event of conflict between the accounts of Agent
and those of a Bank, in the absence of manifest error, the accounts of
Agent shall be regarded as authoritative.
8.7 Any payment carried out by Borrower and received by Agent shall be
allocated, if it is a part payment, according to the following order of
priorities:
1) As payment of all the commissions or fees due and capable of
being demanded under the terms of this Agreement as well as
the expenses and accessories related to this Agreement then,
2) As payment of all delay interest due and capable of being
demanded under the terms of this Agreement then
3) As payment of all interest due and capable of being demanded
under the terms of this Agreement , then finally
4) As payment of any sum due and capable of being demanded as
principal under the terms of this Agreement .
ARTICLE 9 - COMPENSATION
Subject to immediately informing Agent and Borrower thereof, any Bank shall be
permitted to deduct compensation as between any sum owed by Borrower and capable
of being demanded under this Agreement and any sum (capable of being demanded or
not) that the Bank is required to pay Borrower by virtue of this Agreement.
If these sums are denominated in different currencies, Agent shall be permitted
to convert one or the other of them during market exchange according to its
usual practices for the purpose of compensation.
ARTICLE 10 - EQUALIZATION OF PAYMENTS
If one of the Banks were to receive, in any manner whatever, all or part of the
sums due to it under this Agreement, whether by voluntary payment of Borrower,
compensation or in any other manner, the
-Page 16-
Bank concerned shall remit, within ten (10) days, this amount to Agent which
shall then apportion it between the Banks. If the Bank receiving the sums were
then forced to repay them to Borrower, the other Banks having profited from a
proportionate share of this payment must then restore that proportionate share
to the Bank concerned without any interest other than that originating from any
investment of these sums that may have been made. Borrower would remain, in any
event, debtor of the sums which would have been restored to him in this manner
as well as interest and accessories incurred on the same as from the date of
repayment carried out by the receiving Bank.
ARTICLE 11 - DECLARATIONS
Borrower declares and guarantees to Agent and the Banks that:
a) It and the subsidiary companies are companies properly constituted,
enjoying legal personality and that it has full legal capacity to
conclude this Agreement and to carry out and comply with its terms and
conditions;
b) The signature and the execution of this Agreement have been properly
authorized by its corporate bodies and do not require any authorization
of any proper authority which was not obtained;
c) The execution of this Agreement and the performance of the obligations
which result therefrom do not contravene its rules, neither with regard
to its statutes nor in relation to any commitment to which it could be
held, nor the applicable laws or regulations in any way;
d) Its obligations by virtue of this Agreement are unconditional and
(insofar as these obligations were to not profit from a priority of
payment under any security conferred under this Agreement) come, or, if
necessary, shall come, with the same rank as all its other
chirographaric and nonsubordinate debts, of any nature whatever, except
for those debts which are privileged debts by application of the
general Law;
e) No legal, administrative or arbitration procedure is underway, or to
its knowledge, is about to be instituted against it to prevent or
prohibit the execution or performance of this Agreement or which could
have a significant unfavorable effect on its activity, its assets or
its financial standing or on the activity, the assets or the financial
standing of its subsidiary companies;
f) No event likely to have a significant unfavorable effect on its
activity, the entirety of its assets or its economic or financial
situation or on the activity, the entirety of assets or economic or
financial situation of its subsidiary companies has occurred since the
end of their last accounting period and there is not any fact
constituting or obviously likely to constitute a case of accelerated
maturity;
g) Its last balance sheet and consolidated income statement as given to
the Banks, were drawn up according to generally accepted accounting
principles, are lawful and sincere and give a faithful image of the
entirety of its assets, its financial standing and its financial
results;
h) It and its subsidiary companies hold insurance policies for amounts and
risk coverage relating to damage and liability appropriate to the
nature for their activities;
i) it and its subsidiary companies are in conformity with all the laws,
regulations and customs which apply in the fields of protection and
preservation of the environment and health and that their activities
are not or were not the origin of pollution, assault on human health or
the environment; in particular for Jivago and Synavant that they are
not owners or tenant of any real estate included or (with regard to
just the real estate held by them) proposed for inclusion on the
National Priorities List in accordance with the CERCLA law or on the
CERCLIS list or
-Page 17-
any similar list relating to sites which are the subject of an
inspection or must be subjected to a cleanup;
There is no storage tank underground, whether isolated or in a group,
whether in service or abandoned, including any oil storage tank, on or
under one of the real estate sites which is or which shall be held or
rented by Jivago or Synavant or one of its subsidiary companies given
that the existence of such a tank has or can reasonably involve an
Unfavorable Significant Effect;
Neither Jivago neither Synavant nor any of its subsidiary companies has
directly transported or directly arranged to transport a dangerous
material of any nature whatever, to any of the sites of any real estate
included or proposed for inclusion on the National Priorities List in
accordance with the CERCLA law or on the CERCLIS list, or any similar
list where sites are listed or any other list, since this kind of
inclusion is likely to involve federal, state or local sanctions, or is
likely to involve inspections leading to demands for substantial
compensation against Jivago or Synavant for all damage caused to the
environment and for all physical injury caused, including demands made
by virtue of the CERCLA law;
No event has occurred in relation to one of the real estate sites,
either on the surface or underground, which is or which shall be held
or rented by Jivago or Synavant; since it could result therefrom,
following the occurrence of this event and with the help of the
dispatch of a notice or the expiration of a grace period, that a legal
action for liability under American environmental protection
legislation is instituted,
j) Neither it nor its subsidiary companies are the subject of any warning
procedure, nor has any ad hoc or conciliating agent has been appointed,
in particular within the framework of the provisions of articles L.
611-3 and following of the Commercial code, in order to seek conclusion
of an agreement with their creditors, neither it nor the subsidiary
companies is in a state of suspension of payments and no procedure of
rectification or bankruptcy has been instituted against them; or, for
any subsidiary corporation located outside France, is the object of
comparable procedures pursuant to applicable rules under the relevant
governing law.
k) Neither it nor its subsidiary companies hold the business capital and
brands exploited within the Cegedim Group;
These declarations, whose accuracy is one of the determining conditions behind
the grant and maintenance of the Loan, shall be deemed to be repeated on the
occasion of each drawdown. They shall be deemed to be automatically extended to
any corporation in France or elsewhere including Synavant since this corporation
shall have become a branch within the meaning of this Agreement , it being
specified that Borrower declares as of now that:
i) Neither Jivago neither Synavant is an " investment corporation " within the
meaning of the US federal law entitled " United States Investment Corporation
Act " of 1940, as amended subsequently, nor is it a " holding corporation ", a "
subsidiary corporation " of a " holding corporation " nor a corporation
affiliated to a " holding corporation " or a " subsidiary corporation " of a "
holding corporation " within the meaning of the US federal law entitled " United
States Public Utility Holding Corporation Act " of 1935, as amended
subsequently.
ii) Neither Jivago nor Synavant is subject to a law, regulation or statute,
whether federal or relating to governance of a state of the United States, which
has the purpose of restricting its capacity respectively to grant or borrow the
debt envisaged under article 2.2 of this Agreement .
iii) Neither Jivago nor Synavant have been seen to grant loans with the
intention of buying or constituting " margin stocks " and the amount of the Loan
shall not be employed to buy or constitute of such " margin stocks" or for any
other use which would violate, or would be incompatible with
-Page 18-
regulations U or X of the " Federal Reserve System Board " The terms which are
defined in regulations U or X of the " Federal Reserve System Board ", or in the
regulations which could be substituted for them, shall have the same meaning
when used in relation to this article.
iv) For the period of 12 consecutive months that preceded the date of
implementation of the acquisition envisaged, no measure has been taken to
terminate any withdrawal plan, and no failure in relation to the payment
obligations featuring in a withdrawal plan has occurred, if such occurrence is
likely to give rise to a privilege provided for under section 302(f) of the
ERISA. There is no condition, event or transaction that has occurred in
connection with any of the withdrawal plans which could involve serious
liability, a fine or a penalty on the part of Jivago or Synavant. Neither Jivago
nor Synavant is subject to any obligation with regard to any of the advantages
envisaged by any of the of Social security Plans (Welfare Plan), other than the
obligation to ensure cover provided for and described in the 6 th part of title
I of the ERISA.
ARTICLE 12 - COMMITMENTS OF BORROWER
12.1 COMMITMENT TO TAKE ACTIONS
As long as it shall be capable of being subject to any obligation under
the terms of this Agreement , Borrower undertakes towards the Banks as
follows:
a) Handover of books of accountant financial records:
- Annually, and at the latest with the expiration of a
one hundred eighty (180) day period following the
closing of each one of its accounting periods, the
following documents:
(i) certified copies of the annual report
drafted by its board of directors (or its
senior executives), its annual balance
sheet, income statement and annexed
documents as well as the general and special
report produced by its auditors,
(ii) certified copies of the annual report of the
group drafted by its board of directors (or
its senior executives)), its annual
consolidated balance sheet and income
statement as certified by its Auditors,
- annually, and no later than the expiration of a 120
day period following the end of each accounting
period, the Financial Ratios calculated based on the
consolidated annual accounts certified by the
Auditors,
- annually, before December 31 of each accounting
period, the estimated budget as well as a comment on
this budget and its assumptions,
- semi-annually and at the latest before the expiration
of a 75 days period following the end of each
six-month period, the consolidated semi-annual
accounts audited by the Auditors,
b) Additional information
(i) to be supplied to Agent:
- on written request by the Banks, any further
information that could be reasonably
required on the state of the entirety of the
assets of Borrower and the subsidiary
companies and the development of their
financial situation,
-Page 19-
- as soon as they have been drafted, the
minutes of its ordinary and extraordinary
general meetings and of those of the
subsidiary companies.
(ii) to communicate to Agent any information relating to
facts capable of seriously affecting the size or the
value of the entirety of the assets, activity or the
financial situation of Borrower or its subsidiary
companies, in particular any legal procedure likely
to lead to a judgment delivered against it for an
amount exceeding 1,000,000 euros, or its
exchange-value in any other currency or that of a
subsidiary corporation and likely to call into
question its capacity to meet its commitments under
this Agreement ,
c) Changes to accounting rules: in the event of a change to the
principles or accounting rules according to which the
consolidated accounts of Borrower are prepared, to provide to
Agent all the components necessary to calculate Ratios G, L
and C,
d) Transformations: to notify the Banks immediately, by providing
to Agent all the supporting documents necessary, of all
transformations or projects of transformation affecting its
form, its nature or its capacity or those of its subsidiary
companies (in particular delisting, merger, transformation
into corporation of another type, transfer of main office,
institution of a procedure of rectification or bankruptcy,
amicable liquidation, dissolution, etc...),
e) Notification of a Case of acceleration of maturity and other
events (i) to notify without delay Agent of the occurrence of
any event constituting, or obviously likely to constitute, a
case of acceleration of maturity and to report the facts
relating to this event and (ii) to immediately notify Agent of
the enforcement by any creditor, against it or the subsidiary
companies, of any clause of acceleration of maturity, with or
without notice, stipulated in any agreement relating to a
Financial Debt that they have or were to have contracted,
f) Agreements and authorizations: to apply for all authorizations
of the proper authorities that would become necessary after
the execution of this Agreement for the performance by it of
its obligations under this Agreement ,
g) Insurance policies: to subscribe and maintain in force and
insure that the subsidiary companies subscribe and maintain in
force insurance policies for amounts and coverage of risks of
damage and liability - including, if necessary, environmental
risks - appropriate to the nature of their activities,
h) Acquisition documents: to respect its obligations contained in
the documents of acquisition of the assets obtained by means
of the Loan and to do what is necessary to insure that its
rights under these same documents are respected,
i) Rates coverage: to enter no later than 6 months after the
Execution Date hereof into a contract for coverage of the
interest rate risk to a level of 50% of the amount of the
Loan,
j) Taxation: to pay on the due date and to insure that the
subsidiary companies pay on the due date any sum which they
may owe by virtue of all taxes or levies whatever,
k) Syndication: as of now to employ its best efforts to permit
syndication of the Loan and to insure that Agent can, in fine,
limit its commitment under the Loan to a maximum level of 40%.
l) Public offer of purchase Borrower commits itself to supply no
later than the expiration of a one month period as from the
date of the first drawdown a document
-Page 20-
permitting an initial verification of the acquisition by
Jivago Acquisition Corp of at least 51% of the capital of
Synavant Inc, state of incorporation Delaware, IRS Employer
Identification No. ▇▇-▇▇▇▇▇▇▇, address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇.
Borrower then undertakes to justify to Agent the signature by
Jivago of a " merger agreement " omitting the use of the
balance of the Loan and at the end of this " merger ", to give
to Agent a document attesting the acquisition of the balance
of Synavant shares.
12.2 COMMITMENT TO REFRAIN FROM TAKING ACTIONS
As long as it shall be capable of being subject to any obligation under
the terms of this Agreement, Borrower undertakes towards the Banks as
follows:
a) Securities: except by prior agreement with the Majority of the
Banks (the aim of which shall be only to preserve the debt due
to the Banks by virtue of the Loan), not to constitute,
support or permit any security on all or part of any of its
tangible or intangible assets and to insure that its
subsidiary companies constitute, support or permit any
security on all or part of any of their tangible or intangible
assets;
b) Assignments: except by prior agreement of the Majority of the
Banks (the aim of which shall be only to preserve the debt due
to the Banks by virtue of the Loan), not to authorize and to
insure that the subsidiary companies do not authorize any
transfer, assignment or another similar transaction concerning
the securities or rights of ownership in any subsidiary
corporation of the Cegedim Group for a cumulated annual amount
exceeding 5,000,000 euros or its exchange-value in any other
currency;
c) Debts payable : except by prior agreement of the Majority of
the Banks (the aim of which shall be only to preserve the debt
due to the Banks by virtue of the Loan), not to contract at
the consolidated level and to insure that the subsidiary
companies do not contract any Financial Debt;
d) Debts due: not to carry out any assignment of debts due,
except where this occurs in the normal course of business,
except by prior agreement of the Majority of the Banks (the
aim of which shall be only to preserve the debt due to the
Banks by virtue of the Loan);
e) Early repayment: to carry out no repayment before the due date
as principal and interest under loans or any debts
f) Accounting periods : not to modify the closing date of its
accounting periods;
g) Acquisition documents: not to grant any modification to the
documents given to Agent in accordance with article 3.1 (v);
12.3 FINANCIAL RATIOS
As long as it shall be capable of being a debtor of any obligation
under the terms of this Agreement , Borrower undertakes towards the
Banks, subject to the provisions of article 4.3.1:
a) Ratio C: that Ratio C shall remain above 2.50 (two point five
zero),
b) Ratio G: that Ratio G shall remain below 0.50 (zero point five
zero) on December 31 2002, 0.90 (zero point nine zero on
December 31 2003 then 0.80 (zero point eight zero) for the
following accounting periods,
-Page 21-
c) Ratio L: that Ratio L shall remain below 1.50 (one point five
zero) on December 31 2002, 2.50 (two point five zero) on
December 31 2003 then 2 (two) for the following accounting
periods.
ARTICLE 13 - ACCELERATION OF MATURITY
In the event of any one of the events provided for below, each one of them
constituting a Case of acceleration of maturity:
a) Non-payment : In the event of non-payment attitude deadline by Borrower
of any sum capable of being demanded under this Agreement or;
b) Non compliance with a Ratio: in the event that:
- Ratio C is below or equal to 2.50 (two point five zero) or
- Ratio G equals or exceeds 0.90 (zero point nine zero) on
December 31 2003 or 0.80 (zero point eight zero) for one of
the following accounting periods or
- Ratio L equals or exceeds 2.50 (two point five zero) on
December 31 2003 or 2 (two) for one of the following
accounting periods;
c) Nonperformance of a commitment: in the event that for any reason
whatever Borrower fails to perform even one of the obligations
resulting from this Agreement (other than the repayment obligations
aimed at in the preceding subparagraph) unless it is possible to remedy
the failure, it shall be remedied following the expiration of a ten
(10) day period following the written notice made to Borrower by Agent,
asking that it be remedied or;
d) Inaccuracy of a declaration : In the event of inaccuracy, not
originating from a simple material error, of any of the statements made
under article 10, on the Execution Date, or any of the statements made
in any other document (including the drawdown slip) or certificate
provided under this Agreement , at the date on which the aforementioned
statements are made, unless the disadvantages that could result from a
situation of conformity with the declarations have ceased to exist or;
e) Fusion, division, partial contribution of assets: In the event of
realization, by Borrower of any operation of fusion, division, partial
contribution of assets except with the prior consent of the Majority of
the Banks in the project of fusion, division, partial contribution of
assets or;
f) Cross default :
(i) If Borrower or any of the subsidiary companies were to not pay
on the due date (or on expiration of any grace period that may
apply) any sum of an amount equal to or exceeding 500,000
euros, or its exchange-value in any other currency due under
any Financial Debt unless the current liability of the sum due
was disputed in good faith by Borrower or the Subsidiary
corporation concerned and a court of competent jurisdiction
was immediately seized of this dispute or;
(ii) In the event of acceleration of maturity of a Financial Debt
of Borrower or any of the subsidiary companies, of an amount
equal to or exceeding 500,000 euros, or its exchange-value in
any other currency as in the event of nonperformance (or on
expiration of any grace period that may apply) by Borrower or
any of the subsidiary companies of any of the obligations
incumbent on it under any agreement relating to a Financial
Debt, of an amount equal to or exceeding 500,000 euros, unless
Borrower or the Subsidiary corporation concerned disputed the
acceleration of maturity in good faith (or the alleged
-Page 22-
nonperformance) and a court of competent jurisdiction was
immediately seized of this dispute or;
(iii) If Borrower or any of the subsidiary companies were to not pay
on his date current liability (or the expiry of the period of
possibly applicable grace) any sum, of an amount equal or
higher than 500,000 euros or his exchange-value in any other
currency, due under any debt other than a Financial Debt
unless the current liability of the sum due was disputed in
good faith by Borrower or the Subsidiary corporation concerned
and that a court of competent jurisdiction was immediately
seized by this dispute or;
(iv) In the event of acceleration of maturity of a debt other than
a Financial Debt of Borrower or any of the subsidiary
companies, of an amount equal to or exceeding 500,000 euros,
or its exchange-value in any other currency as in the event of
nonperformance (or on expiration of any grace period that may
apply) by Borrower or any of the subsidiary companies of any
of the obligations incumbent on it under any agreement
relating to a debt other than a Financial Debt, of an amount
equal to or exceeding 500,000 euros or its exchange value in
any other currency, unless Borrower or the Subsidiary
corporation concerned disputed the acceleration of maturity in
good faith (or the alleged nonperformance) and a court of
competent jurisdiction was immediately seized of this dispute
or;
g) L.313-12 of the Monetary and Financial Code In the event of seriously
reprehensible behavior of Borrower such that its case or its situation
were to prove irremediably compromised within the meaning of article L
313-12 of the Monetary and Financial Code or;
h) Event affecting the activity, the entirety of the assets or the
economic and financial situation of Borrower If there were to occur an
event likely to have a seriously unfavorable effect on the activity,
the entirety of the assets or the economic and financial situation of
Borrower or on the activity, the entirety of the assets or the economic
and financial situation of its subsidiary companies, unless Borrower
provides to the Banks, within fifteen (15) day following the occurrence
of this event, any insurance, acceptable to the Majority of the Banks,
regarding its capacity to repay the Loan and on its capacity to more
generally comply with the commitments undertaken towards the Banks
under the terms of this Agreement or;
i) Refusal of certifications of the accounts or reserves by the auditors :
If the auditors of Borrower were to refuse to certify its individual
and the consolidated accounts or were to certify them with reserves
(except for technical reserves) or;
j) Loss of half of capital : In the case where, without prejudice to any
other provision of this Agreement, the stockholders' equity of Borrower
were to become less than half of its authorized capital or;
k) Collective procedures, dissolution etc... : to the full extent
permitted by law, if Borrower or any of the subsidiary companies were
to be the subject of a procedure of rectification or bankruptcy (or any
collective procedure having similar effects abroad), of a plan of total
transfer of the corporation within the framework of a collective
procedure, appointment of an ad hoc agent, of an amicable settlement
within the framework of the provisions of articles L 611-3 and
following of the Commercial code (or any similar procedure abroad), of
the implementation of a warning procedure, of an amicable liquidation,
of a dissolution, or else the object of a comparable procedure
according to the relevant governing law or ceased for any reason
whatever its activities (in particular by transferring its business
capital ) or, for Borrower, its main office were to transfer out of
France or;
l) Shareholding: If the distribution of the authorized capital of Borrower
existing at the execution date, in consideration of which the Banks
agreed to authorize the Loan that is the object of this
-Page 23-
Agreement, were to be modified in such a way that ▇▇ ▇▇▇▇▇▇▇ were to
not hold directly any more and/or indirectly at least 50% of the
capital and at least 51% of the voting rights in the general meetings
of Borrower or;
m) Capital: In the event of amortization or reduction of the capital;
n) Non-constitution of securities, disappearance or diminution of the
value of the assets given in guarantee : In the event of
non-constitution by Borrower of the securities noted hereafter in
article 22 within the times agreed upon, and in the event of
disappearance or of reduction in the value of all or part of the assets
given in guarantee in favor of the Banks under this Agreement just as
if any of these assets were to be the subject of a contribution, a
transfer, a seizure or constitution of any right in rem;
o) LOANS, advances, subordinate debts : In the event of repayment by
Borrower of loans or advances to its shareholders or of repayment of
debts which are the object of a subordination agreement between their
creditors and the Banks in relation to the Loan if the cumulated amount
of these repayments suddenly comes to exceed 3% of its authorized
capital before the term of this Agreement;
The following provisions shall apply:
(i) No further drawdown can be carried out by Borrower and,
(ii) By decision of the Majority of the Banks notified by Agent with
Borrower, by registered letter with acknowledgement of delivery, the
whole of the sums due to the Banks by the latter under the terms of
this Agreement, as principal, interest, commissions or fees, expenses
and accessories, shall automatically become immediately due without the
Banks having to fulfill any other formality or to have the acceleration
of the loan term ordered by a court. Any later payments or
regularizations shall not hinder this acceleration of maturity.
Further, in the event of acceleration of maturity of the sums indicated
above, Borrower shall be required to compensate Agent and the Banks (i)
for all the costs, expenses (including lawyer expenses) and charges
which they have had to meet and (ii) of all the losses that the Banks
have incurred while liquidating or redeploying the deposits acquired to
finance all or part of these sums, on presentation, by Agent, of a
certificate drafted by each Bank stating the amount of the compensation
necessary and the calculation of which shall bind the parties except in
the case of manifest error.
ARTICLE 14 - DELAY INTEREST
Any sum not paid on its normal or accelerated due date by Borrower
shall carry interest automatically, to run from the expiration date
until its full repayment, at the EONIA (or TEMPLE) rate - or any other
rate which were to replace the same - taken on a daily basis and
increased by the margin and 300 base points (3%) the year, it being
specified that the EONIA rates applicable to the days which are not
Working Days (within the meaning of the Target calendar) shall be the
EONIA rate published for the preceding Working Day.
The same applies to any expenses and disbursements which may have been
advanced by the Banks at the time of this Agreement for any reason
whatever. This provision cannot harm the current liability without
notice and, consequently, be worth agreement of time of payment. This
provision does not apply to the maturity without prior notice and,
consequently, requires agreement on time of payment.
The interest shall be capitalized, if due for one entire year, in
accordance with article 1154 of the Civil code.
-Page 24-
ARTICLE 15 - AGENT
15.1 Each Bank gives by means of this Agreement authority to Agent, who
hereby accepts the same, to take on its behalf and in its place any
measure and to exercise all the powers which are expressly delegated to
it under this Agreement, as well as those which reasonably flow
herefrom. Except in the cases expressly provided for in this Agreement,
Agent shall not be required to take any action of its own
responsibility, but shall act or abstain from acting validly while
conforming to the received instructions of the Majority of the Banks,
it being understood that Agent shall not have the power to set in
motion any procedure against Borrower for the account of a Bank without
the Bank's instruction for this purpose.
15.2 Agent and its executive managers, agents and co-workers shall not incur
any liability for their action or inaction within the framework of the
above authority except in the case of serious fault or fraud.
15.3 Without this list being restrictive, it is expressly stipulated that
Agent:
- shall be permitted to resort, whenever it considers useful, to
the services of lawyers, auditors and other experts of its
choice and to trust in all good faith in their opinions and
counsels,
- shall be permitted to act or abstain from acting while
trusting the declarations of Borrower and the contents of any
opinion, certificate or another document or act which it shall
be permitted legitimately to believe authentic and emanating
from a qualified person,
- shall have no obligation to carry out investigations or checks
on the compliance with and performance of the obligations and
commitments of Borrower or on its financial situation or its
financial or legal obligation to warn the Banks of any facts
and conditions within the framework of this Agreement, this
being limited to the transmission of information which it
receives in the course of the performance of its authority,
- shall not be responsible for the correct performance,
legality, validity, the external effectiveness or the contents
of this Agreement or any other document given under the terms
of this Agreement .
15.4 The role of Agent includes in particular the transfer to Borrower of
the sums received from the Banks, and to the Banks concerned of the
sums received from Borrower for their account.
However, if Agent were to not have actually received these sums from
the Banks, or as the case may be, from Borrower, Borrower or, as the
case may be, the Banks, is/are committed carry out repayment thereof,
increased by interest receivable on these sums at the interest rate
defined in article 4.3 of this Agreement, increased by the Margin, to
Agent on the first request for its share. If any of the Banks were to
not satisfy its obligations, Agent were to be at all held by it
responsible with respect to Borrower. If any of the Banks were to not
meet its obligations, Agent may not be held in any way liable with
respect to Borrower.
15.5 Agent shall warn the Banks at once of any notice received from Borrower
and shall distribute promptly and in good value between all the Banks
concerned any sum remitted to it by Borrower for the account of the
Banks.
15.6 Borrower undertakes to compensate Agent on presentation of detailed
documents of proof for all costs, damage, disbursements, expenses,
penalties, losses and expenditure and for the
-Page 25-
consequences of any claim and any judgment supported by Agent due to a
failure on the part of Borrower by virtue of this Agreement. If
Borrower fails to repay Agent, the Banks would replace it in proportion
to their commitment related to the Total Commitment. The Banks shall be
subrogated to the rights of Agent towards Borrower to the level of
their participation in this repayment. The repayment of expenses by the
Banks to Agent shall not release Borrower from its obligations.
15.7 Agent shall have, in its capacity as participating Bank, the same
rights and obligations by virtue of this Agreement as any other bank
and shall be permitted to exercise these as if it were not Agent and,
in particular, it shall be permitted to accept deposits from Borrower,
to lend money to it or to grant it borrowing facilities and to
generally undertake business with it without giving an account thereof
to the Banks or for this reason incurring particular liability with
respect to the said Banks.
15.8 Agent shall be permitted to resign from its functions at any time
subject to a three (3) months' notice period, notice being given to
Borrower and to the Banks.
The Majority of the Banks shall then appoint, subject to the agreement
of Borrower, who may not refuse to give its assent without valid
reasons, another credit institution, which shall have to accept, in
writing, that it succeeds the outgoing Agent.
In the case where, on expiration of the period of three (3) months'
notice noted above, the Majority of the Banks could not have appointed
a new Agent or the new Agent has not accepted its functions, the
outgoing Agent shall have the right itself to appoint a new Agent which
must then agree in writing that it succeeds it and which must be a
French credit institution of first tier having the capacity to fulfill
the functions of the outgoing Agent and having a branch in Paris.
15.9 Each Bank declares and affirms to the other Banks and Agent that:
(i) Its decision to conclude this Agreement and to take part in
the Loan, which is the object of this Agreement, was made in
all independence based on its own judgment as regards the loan
and that making this decision was not based at all on the
declarations of Agent or on any other bank as regards the loan
or the economic and financial situation of Borrower.
(ii) It undertook by itself its own investigations on the entirety
of the assets, solvency and the economic and financial
situation of Borrower and it is based on these investigations
and information and documents that it has obtained and
considered to be appropriate and sufficient, that it assessed
the conditions under which Borrower shall be permitted to
fulfil its obligations under this Agreement and, more
generally, the situation of Borrower; it alone shall be
responsible in the future to continue to evaluate by itself
the situation of Borrower and the credit risk which it incurs
and shall count neither on another Bank nor on Agent to
provide it with any assessment, information or comment
whatever on these various components.
15.10 Subject to the provisions hereafter, the provisions of this Agreement
may be amended or modified with the agreement of Borrower and the
Majority of the Banks. Such a modification thus accepted shall bind all
the parties to this Agreement and can be practically implemented by
Agent which shall then sign the documents necessary in this respect on
behalf of the Banks.
However, the following provisions can only be modified with the assent
of Borrower and that unanimous consent of all the Banks:
(i) Increase in the amount of the Loan;
-Page 26-
(ii) Reduction in the Margin;
(iii) Extension of the duration of the Loan or the carrying forward
of the date of maturity of any amount other than the
principal, interest, commissions or fees, expenses and
accessories due from Borrower under this Agreement;
(iv) Reduction in the amount of any payment as principal, interest
or of the commissions or fees under the terms of this
Agreement payable to a party hereto;
(v) Partial or total release of any valuable or personal security
that may have been provided under this Agreement;
(vi) Definition of the term " Majority of the Banks ", articles 9
(Compensation), 10 (Equalization of the payments), 16 (Absence
of joint and several liability) of this Agreement or this
article 15.10.
In addition, any modification of the rights and obligations of Agent
under this Agreement shall require in any event prior, express
agreement by Agent.
ARTICLE 16 - ABSENCE OF JOINT AND SEVERAL LIABILITY
The obligations of the Banks are distinct; there is no joint and several
liability between them.
In consequence and notwithstanding any other provision of this Agreement, no
Bank shall be responsible for the obligations incumbent on another Bank.
If any one of the Banks were to find it impossible to honor its commitments,
this defect would never release the other Banks from their own obligations.
ARTICLE 17 - ASSIGNMENT - SECURITIZATION
17.1 Borrower shall never be entitled to assign or transfer its rights and
obligations arising under this Agreement without prior written
agreement of the Banks.
17.2 Each Bank shall have the power to assign or transfer all or part of its
rights and obligations arising under this Agreement to any of its
parent companies or subsidiary companies or to any credit institution
of good reputation which shall accept the transmission of the same
after, subject to the provisions which follow, (i) prior written
agreement of Borrower, the latter not being able to refuse to give its
assent without valid reason, and (ii) payment by assigner, to Agent, of
its expenses relating to the aforementioned transfer, of a lump sum of
2000 euros net of tax per transfer, its being understood (i) that the
assigned or transferred amount cannot be less than 2,000,000 euros and
(ii) that the participation in this Agreement of the recipient of the
aforementioned transfer or of the aforesaid transfer must be properly
transacted at a branch located in Metropolitan France.
17.3 The Banks shall be permitted in addition freely to manage or dispose of
their claims arising from this Agreement in particular within the
framework of the provisions of articles L 214-43 and following of the
Monetary and Financial Code.
17.4 Borrower authorizes the Banks to communicate to any possible or
potential assignee or counterpart all or part of their rights and/or
obligations arising under this Agreement any information relating to
this Agreement or provided by Borrower pursuant to performance of the
-Page 27-
same, provided that the possible or potential assignee is itself
subjected to bank secrecy or enters into a confidentiality agreement.
ARTICLE 18 - NOTICES
18.1 Agent must as soon as possible pass to each Bank any notice or other
document which it has received from Borrower.
18.2 Any notice capable of being given or required to be given under this
Agreement shall be written and shall be deemed to have been made at the
date of its dispatch by the post office by registered mail with request
for acknowledgement of receipt or, if necessary, the dispatch date of
the telex, fax, or telegram used for the requirements of this notice.
Any notice by fax or telex must be confirmed, as soon as possible, by
mail
Any notice or communication must be sent to the addresses of the
parties stated in article 25 of this Agreement . At any time each party
shall be permitted to notify in writing to Agent, which shall inform
Borrower and the Banks thereof, a new address to which from now on it
wishes notices or communications provided for under this Agreement
should be sent.
18.3 Borrower declares that the drawdown slips signed and transmitted by
fax, as well as those sent by numbered telex, shall be treated in the
same way as documents bearing an original signature, Borrower
discharging Agent and the Banks from any responsibility that could
result from the consequences flowing from erroneous, abusive or
fraudulent use of these transmission methods.
ARTICLE 19 - ABSENCE OF RENUNCIATION
No delay, nor any omission on the part of Agent or a Bank in the exercise of any
of their rights under this Agreement, shall prejudice the said right nor shall
they be regarded as implying of themselves a renunciation of this right. The
rights and resorts stipulated in this Agreement are cumulative and nonexclusive
of any right or resort that Agent or a Bank might have in addition.
ARTICLE 20 - TOTAL EFFECTIVE RATE
So as to satisfy the provisions of articles L 313-1 and following of the Code of
Consumption it is specified that only the use of the Loan may be used to
determine the total effective rate. An indicative example of calculation of the
total effective rate of the Loan appears in separate correspondence sent to
Borrower at the Execution Date .
ARTICLE 21 - TAXES AND EXPENSES
All rights, taxes, present and future levies, of any nature whatever, and
generally, all expenses related to this Agreement (of which the preliminary
expenses of any security that may have been conferred on the Banks by Borrower)
or which would be the continuation or the consequence thereof shall be the
responsibility of Borrower and consequently discharged by him or repaid by him
to Agent in the event of lending by the Banks and definitively supported by
Borrower.
-Page 28-
ARTICLE 22 - SECURITY
22.1 For security of the payment and repayment of any sum due from Borrower
by virtue of the Loan in terms of principal as well as any interest,
commissions or fees, expenses and accessories, Borrower undertakes:
a) To assign by way of pledge and hypothecation in favor of the Banks,
within 30 days from the date of the final realization of the purchase
of the shares of any French corporation financed by means of the Loan
and according to the terms and stipulations of the model annexed in
Appendix 3, one or more accounts in the nature of a financial
instrument opened in its name in the books of the provider of the
account for the said shares.
b) Within 90 days from the date of the final realization of purchase, to
pledge in favor of the Banks the shares of the Jivago Acquisition
Corp., state of incorporation Delaware, IRS Employer Identification No
3645374, address Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware, USA, according to the law of Delaware.
22.2 Borrower further commits itself to (i) assign by way of guarantee, in
accordance with the provisions of articles L 313-23 and following of
the Monetary and Financial Code, within 30 days from the Execution Date
and under the terms and conditions of the model annexed in Appendix 4
to this Agreement, the debts due which it shall be permitted to hold by
virtue of any guarantee of assets and/or liabilities capable of being
issued in its favor at the time of purchase of assets carried out by
means of the Loan or (ii) to delegate to the Banks its receivable(s) by
virtue of any guarantee of assets and/or liabilities capable of being
issued in its favor at the time of purchase of assets realized by means
of the Loan, under the terms and conditions of the model annexed in
Appendix 4 (a)
ARTICLE 23 - SEVERABILITY
If any of the provisions of this Agreement were to become or were to be declared
null, prohibited or without effect, this would not affect the validity of the
remaining provisions of this Agreement.
ARTICLE 24 - PROPER LAW -FORUM FOR LITIGATION
This Agreement is subject for its validity, its interpretation and its
performance to the law of France, with the exclusive choice of forum for
litigation of the parties being that of the Commercial Court of Paris.
ARTICLE 25 - CHOICE OF RESIDENCE
To the extent necessary, each of the parties to this Agreement makes the
following choice of residence:
- Borrower at its main office the address of which is stated on the first
page hereof
- For Credit Lyonnais, at its regional headquarters, [Direction
Regionale] Entreprises Ile de France Sud Ouest,
Done in Paris, April 18 2003.
In three copies.
-Page ▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT LYONNAIS
-Page ▇▇-
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
A : Credit Lyonnais
For the attention of (name of the person / the Service)
Date :
Object : Loan Agreement for 50,000,000 Euros on [?]
This drawdown slip is addressed to you in accordance with the provisions of
article 3.3 of this Agreement referred to above.
We hereby notify you that we wish to carry out a drawdown in accordance with the
provisions of article 3.3 of this Agreement referred to above and having the
following characteristics:
- Amount of drawdown : [-](1)
- Date of drawdown : [-](2)
- Duration of drawdown: [-](3)
Please credit the amount wealth this drawdown to account n(degree) [?] opened
in our name in your books.
We now repeat hereby the declarations contained in article 11 of this Agreement
referred to above and confirmed to you that no case of exhilarating maturity has
occurred or, to our knowledge, is clearly likely to occur.
[-]
(Signature of a competent representative of Borrower)
------------------
(1) the drawdown must be for an amount at least equal to 1,000.000 Euros or
its exchange value in euros and beyond this figure must be an entire
multiple of 500.000 euros.
(2) The date of drawdown must be three (3) working days later than the date
of the receipt by the Agent of the drawdown slip.
(3) The duration of the drawdown must be either one (1), three (3) or six
(6)months.
-Page 31-
APPENDIX 2
DEFINITION OF RATIOS
RATIO C:
For the purposes of this Appendix 2 to this Agreement , the term " Ratio C "
means the result of the following ratio:
Consolidated EBITDA
Service of Consolidated Debt
Calculated based on consolidated accounts of Borrower.
For the purpose of determination of Ratio C:
- The terms " EBITDA " defined based on be consolidated accounts of
Borrower, indicate: the net income (i) before any corporation tax (ii)
before deduction of the Consolidated Financial Expenses (iii) before
any exceptional or extraordinary component which does not form part of
the framework of the current commercial operation of the corporation
and any charge or product of deferred taxes (iv) after deduction (or
addition as the case may be) of the profits (or loss) from any entity
or the Group attributable to a third-party shareholder from the said
entity and a quota from the profits of the companies valued
equivalently (v) after addition (or deduction as the case may be) of
the plus values (or minus values) of asset assignments (VI) before
deduction of purchase fees and clear overvalue.
The expression " Servicing Consolidated Debt " refers to the
consolidated accounts of Borrower and mean specifically the sum (i) of
the " interest and comparable charges " under the heading " financial
expenses " (including those of the tenancy loans withdrawn) appearing
in the consolidated income statement of the CEGEDIM Group and (b) the
sum of the total amount of repayments as principal carried out by
virtue of the financial debts in the medium and long term (including
the withdrawn tenancy loans)) of the CEGEDIM Group.
RATIO G:
For the purposes of Appendix 2 to this Agreement , the term " Ratio G " means
the result of the following ratio:
Consolidated Net Financial Debt
Consolidated Own Capital Stocks
Calculated based on consolidated accounts of Borrower.
For the purpose of determination of Ratio G:
- The expression " consolidated net financial debt ", means the sum,
calculated based on the consolidated accounts of Borrower, of the loans
and comparable debts (including the share in capital of leasing and
hire purchase commitments withdrawn in the accounts within the meaning
of the IAS 17international standards ), within the meaning of the chart
of accounts (including contingent liabilities but other than the
guarantees and charges granted within the framework of
-Page 32-
the current operations of the Cegedim Group), increased as appropriate
for the perimeter of consolidation:
(i) credit situation of the loan bank accounts (in the books of
Borrower and its subsidiary companies),
(ii) items carried as debt discount and unexpired and
(iii) possible factoring, decreased (A) by the debtor position of
the bank accounts (in the books of Borrower and its subsidiary
companies) and (b) of the cash holdings and marketable
securities.
- The expression " Consolidated Own Capital stocks " denotes, on a
consolidated basis at the level of the Cegedim Group, the sum of all
capital, premiums and reserves, revaluation differentials, the
consolidated result carried forward again, subsidised investments,
regulated provisions, decreased minority interests under self-checking.
- The expression " Perimeter of Consolidation " denotes the group of
companies constituted by Borrower and its subsidiary companies
RATIO L:
For the purposes of Appendix 2 to this Agreement , the term " Ratio L " means
the result of the ratio:
Consolidated Net Financial Debt
Consolidated EBITDA
-Page 33-
APPENDIX 3
MODEL HYPOTHECATION OF
ACCOUNT OF FINANCIAL INSTRUMENTS
AGREEMENT FOR HYPOTHECATION OF ACCOUNT OF FINANCIAL INSTRUMENTS
(FINANCIAL INSTRUMENTS REGISTERED IN ACCOUNT, NOT NEGOTIATED ON A REGULATED
MARKET)
BETWEEN THE UNDERSIGNED
1(degree)) CEGEDIM, limited corporation with the capital of [-] (Euro),
of which the main office is in [-], Siren [-] - RCS [-],
represented by [-] duly authorised for this purpose under the
terms of a delegation on [-],
Hereafter called the << CONSTITUANT>>,
of the first part,
2(degree)) CREDIT LYONNAIS, limited corporation with the capital of 1 808
394 053 (Euro), whose main office is in Lyon (69000), ▇▇ ▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and the central office in Paris (75002), ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, SIREN 954 509 741 - RCS Lyon,
represente par [-],
as well as any credit institution to which Credit Lyonnais may
assign part of the Loan
Hereafter called together but without joint and several
liability between them << BANKS >>,", individually the << bank
>>,
of the second part,
3(degree)) CREDIT LYONNAIS, limited corporation with the capital of 1 808
394 053 (Euro), whose main office is in (69000), ▇▇ ▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ and central offices inParis (75002), ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, SIREN 954 509 741 - RCS Lyon, represented by
[-],
Hereafter called "Agent ".
of the third part.
Definitions: the terms shown in capital letters shall have the meaning which was
given to them in the Trust deed, in the absence of any provisions to the
contrary.
IT HAS BEEN AGREED AS FOLLOWS:
-Page 34-
ARTICLE 1 - PLEDGE
As security for the payment and repayment of all sums which constituent
can or shall be permitted to owe to the Banks:
(i) as principal, interest, commissions or fees, expenses and
accessories, under a Loan authorized by the Banks to Constituent by
informal agreement concluded in [?] on [?], of a maximum amount as
principal of 50,000,000 EUR (fifty million euros), with a term of 5
years and 6 months, producing interest for each drawdown, at the
Euribor rate for the term of the said drawdown, increased by 75 base
points (0.75%) per year, the Margin being adjustable according to the
development of the Financial Ratios, it being in particular intended to
finance the acquisition of shares of the corporation[-],
and (ii) also all the expenses, expenditure and costs reasonably
incurred by the Banks or Agent for protection and implementation of
their rights with regard to Constituent
(Hereafter " Guaranteed Debt")
Constituent assigns by way of pledge and hypothecation in favor of the
Banks, and the latter except the same, the account of financial
instruments hereafter indicated (hereafter the " Guaranteed Account")
opened in the name of Constituent and hosted at:
The corporation [-] (hereafter " Account Host")
and in which are registered the following financial instruments:
[-] shares with a par value of [-] ([-]) euros issued by the [-], ]
limited corporation with capital of [-] euros, of which the main office
is located in [-], SIREN [-], RCS [-],
In accordance with the provisions of the article L 431-4 of the
Monetary and Financial Code:
- Constituent gives this day to Agent, acting in the name and on behalf
of the Banks, a declaration of pledge signed by its competent
representative, in conformity with the model appended in Appendix,
- Agent, acting in the name and on behalf of the Banks, shall request
from Account Host a certificate of hypothecation of account of
financial instruments comprising the inventory of the financial
instruments and sums in any currency, registered in the Account pledged
at the date of delivery of this certificate.
ARTICLE 2 - REGISTRATION OF HYPOTHECATION
In accordance with the provisions of article L 431-4 of the Monetary
and Financial Code, the pledged Account shall take the form of a
separate account opened in the name of Constituent and kept by Account
Host.
To this end, Constituent appoints Agent irrevocably, acting in the name
and on behalf of the Banks, in order to carry out at Account Host all
formalities related to the constitution of this hypothecation.
-Page 35-
ARTICLE 3 - DIVIDENDS, INTEREST AND OTHER PRODUCTS
The pledge relates to the whole, current and future value, of the
financial instruments appearing in the pledged Account including any
and all interest, dividends and products.
Any and all the cash yields and products to come from the financial
instruments which appear and shall appear in the Pledged Account as
well as all the rights in cash resulting from any operations affecting
these financial instruments such as the sums paid in amortization or
repayment of their capital (including any discount), are included
within the ambit of the pledge.
All the sums aimed at in the preceding subparagraph and which were to
be credited to the Pledged Account must be immediately paid by Account
Host to Agent, acting in the name and on behalf of the Banks and either
shall be charged to the credit of the Banks under the guaranteed debt,
or preserved by way of cash pledge by the Banks, the sums thus affected
being charged, at the proper time, to the credit of the Banks under the
guaranteed debt.
However, subject to compliance by Borrower with the provisions of the
agreement which has as its object the Guaranteed debt, the Banks
authorize Constituent to directly pay the dividends to which the
financial instruments appearing in the Pledged Account confer
entitlement as well as the interest which they would produce. This
authorization may be revoked by Agent, acting in the name and on behalf
of the Banks, in particular in the event of occurrence of a Case of
Accelerated Maturity (as these terms are defined in the agreement which
has as its object the Guaranteed Debt) by simple notice sent to
Constituent and Account Host.
The Banks and Constituent shall inform in writing Account Host of the
conditions under which Constituent shall be permitted to have the sums
appearing in the Pledged Account in accordance with the provisions of
the preceding paragraphs.
ARTICLE 4 - SUBSTITUTED OR ADDED FINANCIAL INSTRUMENTS
The financial instruments appearing in the pledged Account, those which
are substituted for them or added to them, in any manner whatever, are
automatically included within the ambit of the pledge.
The pledge relates to all possible rights in kind originating from the
various operations affecting the financial instruments appearing in the
Pledged Account as well as the rights attached to these securities
(subscription or attribution rights), these rights as well as the
resulting products being included automatically within the pledge.
The securities originating from exchange, substitution, conversion,
repayment, reorganisation of a division, fusion, assignment or partial
contribution of assets shall be automatically included within the ambit
of the pledge on the same basis and under the same conditions as the
financial instruments registered in the Pledged Account at the date
hereof.
In the same way, if the financial instruments appearing in the Pledged
Account give rise to any new securities by operation of an attribution
or free distribution, subscription or preferential attribution (even on
a purely reducible basis) in cash or of any other manner, these new
securities shall be automatically included in the pledge on the same
basis and the same conditions as the financial instruments registered
in the Pledged Account at the date hereof.
The Constituent undertakes to implement, if necessary, as soon as
possible, all the formalities required for attribution of the
securities and their transferred to the Pledged Account in favor of the
Banks. For the implementation of these operations, Constituent gives to
Agent of the Loan, along
-Page 36-
with a power for the latter to substitute, an irrevocable authority to
perform any useful operation and formality, and in particular to have
remitted all cash or securities originating from the conversion or the
repayment of the financial instruments appearing in the Pledged Account
or from all other operations affecting the said financial instruments.
ARTICLE 5 - ENFORCEMENT OF THE PLEDGE
In the absence of payment, whether at its normal or an accelerated date, of any
sum due from Constituent by virtue of the Guaranteed Debt, the Banks shall have
the right to enforce the pledge:
- for the sums in any currency appearing in the pledged Account, by
transfer in full title,
- for the financial instruments appearing in the pledged Account, by sale
or attribution, in accordance with the provisions of articles L 521.3
of the commercial code and 2078 of the Civil Code,
and to apply the sums thus transferred and the price or the estimated value of
the financial instruments sold or allotted to reduction of the sums due to them
by privilege and in preference to all others.
Constituent shall meet all the expenses resulting from enforcement of the
pledge; these expenses shall be charged to the amount enforced.
ARTICLE 6 - DECLARATIONS AND GUARANTEES
Constituent declares and guarantees to the Banks that:
a) It is a correctly constituted corporation, enjoying
legal personality and having full legal capacity to
conclude this pledge agreement and to perform and
comply with the terms and conditions;
b) The execution and the performance of this Pledge
Agreement were properly authorized by its corporate
bodies and do not require any other authorization
which was not obtained;
c) The execution of this Pledge agreement and the
performance of its obligations resulting therefrom
contravene neither its statutes neither any
undertaking to which it could be held, nor in any way
infringed the laws or regulations to which it is
subject.
d) It has title to the financial instruments appearing
in the Pledged Account, and that the said account as
well as the financial instruments which appear in it
are free of any preference, hypothecation or any
right in rem;
e) In consequence of the deliberation of the board of
directors of the corporation [?], on [?] having
duly authorized the hypothecation of the shares
registered in the Pledged Account and approved any
possible assignee of the said shares in the event of
enforcement of the pledge in accordance with the
article [? ] of its statutes, there exists no clause
within the statutes, no shareholder protocol nor any
clause of pre-emption of any nature whatever having
for effect the prevention of enforcement of the
pledge.
-Page 37-
ARTICLE 7 - VARIOUS
a) Constituent shall refrain from performing any
operation involving transfer of property, assignment
in pledge or constitution of any right on the Pledged
Account or any of the financial instruments or the
rights which are attached thereto and which appear in
it except for the transfer of forming fractional
securities.
b) This hypothecation does not prejudice in any way the
rights and shares of the Banks and does not and shall
not affect the nature of any commitments and
guarantees, real or personal, which could or could be
contracted or provided, either by Constituent , or by
any third party, and to which this hypothecation is
and shall be added.
c) It shall remain in being until the extinction of the
causes of this Agreement and the Banks shall not
undergo any accommodation with third parties in
relation to this hypothecation.
d) The rights of hypothecation conferred by this
Agreement on the Banks shall compete between each
other, in proportion to the level of their claim
under the Guaranteed Debt.
e) Any expenses and imposition to which this pledge and
enforcement could give rise shall be met by
Constituent .
f) Each Bank agrees to reserve, in accordance with
article 1278 of the Civil Code, in favor of any bank
assigned its rights and obligations, something which
is expressly accepted by Constituent, the benefit of
this hypothecation for guarantee of the Guaranteed
Debt, with due competition and in proportion to the
level of the claim assigned under the Guaranteed
DEBT.
ARTICLE 8 - FORUM FOR LITIGATION - CHOICE OF RESIDENCE
This Agreement is subject for its validity, its interpretation and its
performance to the law of France, with the exclusive choice of forum
for litigation of the parties being that of the Commercial Court of
Paris.
To the extent necessary, each of the parties to this Agreement makes
the following choice of residence:
- - Constituent at its main office the address of which is shown on the
first page hereof
- For CREDIT LYONNAIS, in its [-],
Done in [-], on[-],
In [-] original copies
__________________ ____________________
Constituant Agent
__________________
Credit Lyonnais
-Page 38-
APPENDIX 1
DECLARATION OF PLEDGE OF ACCOUNT OF FINANCIAL INSTRUMENTS
(ARTICLE L 431-4 OF THE MONETARY AND FINANCIAL CODE)
CONSTITUANT OF THE PLEDGE
1(degree)) CEGEDIM, LIMITED CORPORATION WITH CAPITAL OF [-] (Euro), OF
WHICH THE MAIN OFFICE IS IN [-], SIREN [-] - RCS [-], REPRESENTED BY [-] DULY
AUTHORISED FOR THIS PURPOSE UNDER THE TERMS OF A DELEGATION ON [-],
<< Constituant >>
CREDITORS AND PLEDGE BENEFICIARIES
Credit Lyonnais, limited corporation with capital of 1 808 394 053 (Euro), whose
main office is in Lyon (69000), ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and the central office
in Paris (75002), ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, SIREN 954 509 741 - RCS Lyon, in
its capacity as agent [-],
And any credit institution to which Credit Lyonnais may assign part of the loan
<< Banks>>
GUARANTEED DEBT
(i) Loan Agreement for a maximum amount as principal of 50,000,000 EUR (fifty
million euros), authorized on [? ] by the Banks as Constituent , with a term of
5 years and 6 months, producing interest for each drawdown, at the Euribor rate
of the term of the said drawdown, increased by75 base points (0.75%) per year,
this margin being adjustable according to the development of the Financial
Ratios, each Bank taking part in the sum of:
In particular intended to finance the acquisition of shares of the corporation
[? ],
And (ii) as well as all the expenses, expenditure and costs reasonably incurred
by the Banks or Agent for protection and implementation of their rights with
regard to Constituent .
Hereafter " the Guaranteed Debt "
ACCOUNT HOST
[-], ] LIMITED CORPORATION WITH CAPITAL OF [-](Euro), OF WHICH THE MAIN OFFICE
IS LOCATED IN [-], SIREN [-], - RCS [-],
<< account host>>
PLEDGED ACCOUNT
Account n(degree) open in the books of Account Host and including at the date of
this Agreement the financial instruments indicated hereafter: :[-] shares with a
par value of [-] ([-]) euros issued by the [-], ] limited corporation with
capital of [-] (Euro), OF which the main office is located in [-], SIREN [-] -
RCS [-],
<< pledged account >>
In [-], on [-]
Signature of Constituent
-Page 39-
MODEL OF CERTIFICATE OF HYPOTHECATION
OF ACCOUNT OF FINANCIAL INSTRUMENTS
(ARTICLE L 431-4 OF THE MONETARY AND FINANCIAL CODE)
After becoming acquainted with the DECLARATION OF PLEDGE OF ACCOUNT Of FINANCIAL
INSTRUMENTS,
on: [-] 2003
SIGNED BY: CEGEDIM, LIMITED CORPORATION WITH CAPITAL OF [-]
(Euro), OF WHICH THE MAIN OFFICE IS IN [-], SIREN [-]
- RCS [-],SIREN [-] - RCS [-], represented by [-]
DULY AUTHORISED FOR THIS PURPOSE UNDER THE TERMS OF A
DELEGATION ON [-],
For the benefit of: Credit Lyonnais, limited corporation with the capital
of 1 808 394 053 (euro), whose main office is in LYON
(Rhone), ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and the central
office in Paris (75002), ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
SIREN 954 509 741 - RCS Lyon.
[-]
[-]
We the Undersigned, acting in the capacity of account host of the pledged
Account,
1) We attest the hypothecation of the account of financial instruments
referred to in the above declaration of pledge.
2) We give inventory of the financial instruments a list of which is
reproduced in the above declaration of pledge.
3) We take note of the prohibition made with respect to Constituent not to
undertake transactions with the financial instruments registered in the
pledged Account, and agree to perform the resulting monitoring,
4) We confirm that in the event of occurrence of a Case of accelerated
maturity by virtue of the loan agreements, we undertake as from the
date of notice which shall be made to us by Agent of the Loan to credit
the Account of Financial Instruments with the entirety of the dividends
distributed in respect of the Financial Instruments appearing in the
Account of Financial Instruments
Done in(4)
On(5)
Account Host(6)
------------------
(4)City
(5)Date
(6)Seal and signature
-Page 40-
APPENDIX 4
MODEL INSTRUMENT OF ASSIGNMENT OF DEBT RECEIVABLE
UNDER GUARANTEE
Articles L 313-23 with L 313-34 of the Monetary and Financial Code
Between the undersigned
Credit Lyonnais, whose main office is in Lyon (Rhone), ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
and the central office in Paris (2nd Arrondisement), ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
SIREN 954 509 741 - RCS Lyon, represented by
- [-]
- [-]
hereafter " Banks "
And
CEGEDIM, LIMITED CORPORATION WITH CAPITAL OF [-] (Euro), OF WHICH THE MAIN
OFFICE IS IN [-], SIREN [-] - RCS [-], REPRESENTED BY [-] DULY AUTHORISED FOR
THIS PURPOSE UNDER THE TERMS OF A DELEGATION ON [-],
Hereafter " client "
It is expressly agreed as follows:
ARTICLE 1
In consideration for all the sums which Client may owe to the banks as any
principal, interest, commissions or fees, expenses and accessories by virtue of
the low of an amount of 50,000,000 EUR, of a term of 5 years and 6 months,
authorized by the Banks on April 18 2003, it is agreed that, under the
conditions provided for in articles L 313-23 to L 313-34 of the Monetary and
Financial Code, Client shall assign to the banks and according to the methods
indicated hereafter, all title to the professional loans that it holds with
regard to its customers.
All rights in favor of the banks resulting from the transfer of any title to
these loans, in consideration for the transactions carried out or likely to be
carried out in the checking account concerned shall remain in being, but their
effect on the debit balance of the checking accounts shall be carried forward,
so that these balances shall appear at the time of closure of the said accounts.
-Page 41-
ARTICLE 2
Acceptance by the banks of a form drafted by Client as indicated hereafter,
shall not for the banks involve either an obligation to authorize a alone equal
to the amount stated on the form nor any confirmation of the advances previously
authorized or subsequently granted.
Under the preceding reserves, the loans which could be granted on the conditions
and procedures agreed on in addition, shall be used simultaneously at each bank
in relation to this Agreement by client who shall in consequence divide up its
withdrawals and repayments in proportion to the level of the banks'
participation.
With each remittance of funds relating to the loans, the customer shall
subscribe to the order of each bank, if CREDIT LYONNAIS so requires, one or more
drafts domiciled at each bank, with a minimum term of ten days and a maximum
term of ninety days. These drafts shall be permitted to be renewed within the
limits of the amount and term indicated by CREDIT LYONNAIS. The drafts thus
subscribed and renewed shall be given by client to CREDIT LYONNAIS, with
instructions to the latter to transmit them to each bank being a party to this
Agreement .
Each bank shall credit the checking account of Client opened in its books with
the face value of the effect of assignment representing the amount of the
advance granted to Client, then shall debit the same account with the amount of
the agios and commissions related to the operation carried out. At their due
date, these drafts could be debited to the checking account of Client in the
books of each bank. The drafts shall be implemented as " realization value "
from the authorized loans and their subscription, their renewal and their entry
in the account, in terms of both credit and debit, and shall not involve any
novation of the debts receivable resulting from the implementation of the loans.
ARTICLE 3
Client undertakes to maintain the amount outstanding assigned from the debts
receivable and unexpired in favor of the banks equal at all times to a certain
percentage fixed in addition, loans which nevertheless shall have been
authorized to it, it being agreed that as regards the public or private market,
the amount retained for each loan shall be that appropriate to the work
situations certified by Client. In consequence, on each expiration of the debts
receivable assigned, Client shall be required to supply new forms in such a way
that this percentage is maintained.
Failing this, the banks shall have the power to require a partial redemption in
order to maintain the ratio stated above between the amount outstanding of
unexpired assigned debts receivable and the loan granted. Client undertakes to
make immediate payment to the amount of this reduction of the loan.
To ensure the full effect of this provision and without it being worth agreement
on time of payment, it is agreed that every remittance or payment carried out or
received on behalf of Client, shall be applied specially and automatically, by
the banks, to this reduction of the loan:
- whether by way of reduction in the debtor position of the checking account,
- whether by allocation to settlement of the expired, undisputed debt actuation.
-Page 42-
- whether still being preserved by the banks in their own assets to be used for
settlement of the expired debts due closest to the priorities granted or the
drafts expiring first, unless acceptance by the banks of new forms enables them
to make the product of these encashments available to Client.
ARTICLE 4
Any assignment in favor of the banks shall be accompanied by handing over to
CREDIT LYONNAIS acting for common account of the banks, a form hereafter called
" the form ", stipulated to be by order of and signed by Client, which shall be
drafted in accordance with the provisions of article L 313-23 of the Monetary
and Financial Code.
This Agreement applies to any form which refers to it. This reference shall be
deemed to be satisfied since the form entitled " Instrument of Assignment of
Professional Debts Receivable " shall be supplemented with the statement "
Assignment by Way of Guarantee ".
The handover of the form shall mean assignment to the banks of the debts
receivable which shall be listed on it as from the date affixed to it by CREDIT
LYONNAIS. CREDIT LYONNAIS shall always have the power, after examination of the
professional debts receivable related to the form, to refuse some of the debts
receivable proposed for assignment. In the event of refusal, it shall remove
from the form the rejected debts receivable and consequently shall modify the
total on it; it shall then send to Client a duplicate of the form so modified.
Each assignment shall apply to the principal, interest and accessories,
including any supplement or increase in price resulting from any increase in
services or work, revisions or changes in price, as well as any allowances due
for any reason whatever. It shall involve automatically the transfer of
securities guaranteeing each debt receivable and of all rights, shares and
accessories without exception associated therewith.
In the case of a public or private contract, the transfer shall relate further
to all the debts receivable which Client shall be permitted to claim against the
customer under the assigned contract, as well as all purchase orders lodged as a
result and all endorsements or supplementary agreements, the debts receivable to
come if necessary from repayments of guarantees and all other sums resulting
from the assigned contract or its accessories.
ARTICLE 5
Although the assignments of debts receivable occurring within the framework of
this Agreement shall take place in full title, they shall not be permitted to
affect in any manner whatever the scope of any and all commitments and
guarantees which have been or could be contracted by Client or by a third party,
to all of which they shall be added.
In the same way, they cannot release Client of its obligations towards the banks
in terms of the amount of the assignments made.
ARTICLE 6
Each form must group together by expiration period (ten days or fortnight) and
by currency, the assigned debts receivable.
-Page 43-
The form shall indicate has beneficiary institution all the participating banks
and the original of the said form shall be held by the CREDIT LYONNAIS for the
common account of the banks.
The banks hereby authorize CREDIT LYONNAIS which accepts the said authority, to
receive this form, to date it and to hold it for the common account.
The form shall mention the share of each participating bank in the profit
yielded by the assignment.
If the transmission of the assigned debts receivable is accompanied by the
handover of a magnetic medium, CREDIT LYONNAIS reserves the right to be
supplied, with the aid of the form, a hardcopy summary of the debts receivable
being reproduced on the magnetic medium.
ARTICLE 7
Client undertakes to place on any form only debts receivable resulting from
deeds that have already been implemented and not any debts receivable resulting
from deeds that have not yet been implemented or are the object, completely or
partially, of any assignment, delegation or hypothecation, seizure, opposition
or prevention. In the same way, and except by prior express consent of the
banks, no form shall show debts receivable being the subject of extensions or
that are unpaid or are the subject of litigation for any reason whatever.
Client also undertakes, except by written agreement of CREDIT LYONNAIS, not to
allow to appear on the form any debts receivable corresponding to services
sub-contracted or carried out within the framework of groupings or associations,
as well as not to engage in sub-contracting or constituting such groupings or
associations once the debts receivable have been assigned.
ARTICLE 8
Client is constituted as agent of the banks for the purpose of preserving their
rights, this agency including not only the application of any retention of title
clause, but also the monitoring, repossession and the realization of the item
sold.
Whatever the agreements entered into with its purchaser, Client is not permitted
to claim against the banks in respect of the risk of loss or destruction of the
items sold.
In the event of repossession of all or part of the items sold, Client on the one
hand is concerned only with settling all or part of the sums required by the
purchaser and, on the other , shall not be permitted to claim that it has been
released with regard to the banks from its obligation to repay all or part of
the debt receivable that the banks have in relation to it.
Except prior agreement of the banks, Client shall not be permitted to modify the
extent of the rights, security, shares and accessories attached to the debts
receivable referred to on the form. Otherwise, such modifications cannot be
claimed against the banks.
Further, Client undertakes:
- For each debt receivable assigned, at any time to pass to CREDIT LYONNAIS on
request by the latter, all justifying securities and documents that it shall
consider necessary or which should permit, if necessary, recovery of the debts
receivable assigned;
-Page 44-
- To take all steps necessary or useful to obtain as soon as possible the
performance by the assigned debtors their obligations and to help the banks by
all means appropriate in obtaining this performance;
- Not to accept expressly or tacitly a general and final account without prior
agreement of CREDIT LYONNAIS and nor to compromise or compound, or to to make
even a partial renunciation for the benefit of the debts receivable assigned or
the rights and guarantees associated therewith, without prior agreement of
CREDIT LYONNAIS;
- To pass to Credit Lyonnais, in the case of a public contract, the special copy
of the contract stating that it is the sole copy and in the event of a private
contract, the original of the contract returned to it and signed by the
customer.
Client undertakes not to require the banks to perform any formality or
intervention of any nature whatever in relation to the assigned debtors.
ARTICLE 9
Client shall act so as to promote settlement of the accounts receivable assigned
in favor of the banks.
Any payment which Client might obtain in any form whatever, by virtue of the
accounts receivable assigned, shall not be received by it except in the capacity
of agent of the banks
ARTICLE 10
The banks reserve the option that they may in theory use systematically for
public or private contracts, this being to notify, via Credit Lyonnais, the
transfers to the debtors assigned which shall then be required to settle the
same directly with Credit Lyonnais for the account of the banks, and they shall
also be required to make a direct undertaking towards the banks
In the event that the banks exercise this power, Client undertakes to have
passed to Credit Lyonnais immediately the instruments of payment or the sums
which it would have received, while also providing to Credit Lyonnais and the
banks all information allowing them to identify the debt receivable or the share
of debt receivable settled.
The receipts of the debts receivable assigned shall be allocated to repayment of
the authorized loans and, more generally, to auditing of the possible debit
balance of the checking account aimed under 1 preceding or to payment of all
sums which could be due to the banks by Client for any reason whatever.
This allocation of the payments must not be regarded as a renunciation by the
banks of full title to the debts receivable assigned.
If the sums received by the banks appeared of an amount higher than that of
their debts receivable, the banks should make the surplus available to Client.
ARTICLE 11
The receipts of the debts receivable assigned could be entered by the banks
either in their own assets, or in a separate account that might constitute or
not a section of the checking account concerned, until
-Page 45-
such time as complete extinction of the debts receivable occurs. The banks shall
be permitted however to authorize in exceptional circumstances Client to consult
the account used for this purpose or to obtain a statement, it being however
specified that it shall be only be a discretion intended to facilitate the
accounting management of Client, without there being any novation in relation to
the transfers of debts receivable and the right of ownership of the banks over
the sums received by them nor in relation to the nature of this internal account
of the banks.
ARTICLE 12
All or any expenses, taxes or accessories, related to the operations being the
subject of this Agreement, shall be the responsibility of Client who undertakes
to settle the same.
ARTICLE 13
This Agreement is concluded for an indefinite term. It may be cancelled at any
time by one of the banks. This cancellation shall occur thirty days after the
date of rewritten version hereof which shall be given or sent for this purpose
by the bank.
ARTICLE 14
In the event of violation or of non-observance of the commitments undertaken
under the terms of this Agreement by Client, as well as in the cases provided
for under article L 313-12 of the Monetary and Financial Code, the banks shall
not be held to comply with the full length of the notice period and Client shall
be held to immediate repayment of the advances granted by virtue of the loans in
progress. The banks shall be permitted then to exercise their right to receive
repayment and to require the reduction of these advances including by
acceleration and to deduct from final settlement any reductions as may be agreed
contractually.
The cancellation of this Agreement by Client involves immediate and total
repayment of all loans in progress. As long as this total repayment has not
occurred and without this provision being worth agreement on time of payment,,
the obligations incumbent on Client under this Agreement shall remain in being.
Done in*****PLACE OF EXECUTION, on
*****EXECUTION DATE
In*****NUMBER OF COPY copy(ies)
-Page 46-
APPENDIX 4 (A)
MODEL DEED OF DELEGATION
BETWEEN THE UNDERSIGNED
1. CEGEDIM, LIMITED CORPORATION WITH CAPITAL OF [-](Euro), OF WHICH THE
MAIN OFFICE IS IN [-], SIREN [-] - RCS [-], REPRESENTED BY [-] DULY
AUTHORISED FOR THIS PURPOSE UNDER THE TERMS OF A DELEGATION ON [-],
HEREAFTER CALLED
"DELEGATOR"
2. CORPORATION, LIMITED CORPORATION WITH CAPITAL OF [-](Euro), OF WHICH
THE MAIN OFFICE IS IN [-], SIREN [-] - RCS [-], REPRESENTED BY [-] DULY
AUTHORISED FOR THIS PURPOSE UNDER THE TERMS OF A DELEGATION ON [-],
HEREAFTER CALLED
"DELEGATE "
3 CREDIT LYONNAIS, limited corporation with the capital of 1 808 394 053
(Euro), whose main office is in Lyon (69000), ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
and the central office in Paris (75002), ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
SIREN 954 509 741 - RCS Lyon, represente par [-],duly authorized,
As well as any credit institution to which Credit will Lyonnais may
assign part of the loan
HEREAFTER
" DELEGATAIRES " OR "
BANKS "
AFTER RECALLING that in accordance with their record of assignment of [ ] the
Delegates authorized towards Delegatora guarantee of assets and liabilities
(hereafter " Guarantee") on [ ],
AGREE AS FOLLOWS:
The Delegator hereby delegates to the Banks, in conformity with the provisions
of article 1275 of the Civil Code, and to the Delegates in the amount of all
sums which the latter shall be likely to owe under the terms of the Guarantee.
-Page 47-
The Delegates hereby declare their acceptance of this delegation and undertake
towards the Banks that they will pay the said sums.
The Banks hereby declare their acceptance of this delegation.
By express agreement:
- The sums thus received shall apply automatically to cover all those as
principal, interest and accessories which Delegator shall be permitted
to owe to the Banks and this under the conditions provided for in
article 6.2 of this Loan Agreement for 50,000,000 EUR, of a term of 5
years and 6 months, productive of interest for each drawdown, at the
Euribor rate of the term of the aforesaid drawdown, increased by 75
base points (0.75%) per year, authorized by the Banks to Delegator on [
],
- This delegation does not involve novation in respect of the rights and
shares of the Banks towards Delegator which shall remain entirely
obliged with regard to the Banks without being able to require that the
Banks pursue Delegates first.
Delegator and Delegates declare that neither transfer, nor hypothecation of the
Guarantee, nor delegation have been agreed to, and that there does not exist any
opposition or any obstacle to the payment of the sums which could be due under
this guarantee.
In consequence of this delegation:
- All payments by Delegate must be carried out via account n(degree)[ ],
- Delegates shall not claim against the Banks any of the exceptions which
they were to be able to claim against Delegator.
Delegator acknoledges that the payments thus carried out at the Banks shall
release Delegates in the amount of their commitment towards it.
All rights, taxes and expenses to which this Agreement as well as its
performance shall be permitted to give rise to, shall be met by Delegator.
For the performance of this deed, the following choice of residence is made:
- by Delegator, at its main office,
- by Delegates, at their address above,
- by the Banks at CREDIT LYONNNAIS, Branch [ ] acting as Agent.
The undersigned parties require the recording of this deed, the performance of
the formality being left as CREDIT LYONNAIS shall see fit.
Done in three copies.
In[ ], l[ ]
-Page 48-
APPENDIX 5
DEED OF ASSIGNMENT
BETWEEN THE UNDERSIGNED:
1(degree)) CEGEDIM, limited corporation with capital of [-] (Euro), OF
WHICH THE MAIN OFFICE IS IN [-], Siren [-] - RCS [-],
represented by [-] DULY AUTHORISED FOR THIS PURPOSE UNDER THE
TERMS OF A DELEGATION ON [-],
Hereafter called " Borrower ",
of the first part,
2(degree)) Corporation, LIMITED CORPORATION WITH CAPITAL OF [-](Euro), of
which the main office is in [-], SIREN [-] - RCS [-],
REPRESENTED BY [-] duly authorized
Hereafter called "Assigning Bank"
of the second part,
3(degree)) Corporation, LIMITED CORPORATION WITH CAPITAL OF [-](Euro), of
which the main office is in [-], SIREN [-] - RCS [-],
REPRESENTED BY [-] duly authorized
Hereafter called "Intervening Bank"
of the third part.
4(degree)) Credit Lyonnais, LIMITED CORPORATION WITH THE CAPITAL OF 1 808
394 053 (Euro), WHOSE MAIN OFFICE IS IN LYON (69000), ▇▇ ▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ AND THE CENTRAL OFFICE IN PARIS (75002), 16
BOULEVARD DES ITALIENS, SIREN 954 509 741 - RCS LYON,
REPRESENTE PAR
[-], duly authorized,
Hereafter called "Agent ".
of the fourth part.
Recalling that:
-Page 49-
- Under the terms of a private agreement on [?] 2003 (hereafter the
"Agreement"), Credit Lyonnais granted Borrower a Loan (hereafter the "
Loan") of an amount of 50,000,000 EUR (FIFTY MILLION EUROS). The Loan
is intended to enable Borrower to finance the acquisition of the
corporation [?] with capital of [?] (Euro), having its main office in
[?], Siren [?] RCS [?] and the acquisition of 80% of the capital of
a corporation required to meet the criteria defined in article 2.2 of
the Agreement
- The other terms and conditions of the Agreement are not reported in
further detail, as they are well known by the parties who declare that
they refer to the said agreement expressly,
- Assigning Bank, in accordance with the provisions of article 19.2 of
this Agreement, intends by means of this Agreement to assign part of
its commitment under the Loan to Intervening Bank, in agreement with
Borrower and the other parties to this Agreement .
IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1
Intervening Bank agrees to take part in the Loan to the level of the sum as
principal of [?] EUR (in figures and letters) representing [?]% of the amount as
principal of the Loan.
Consequently, Intervening Bank undertakes to pay to assigning Bank the sum of [?
] EUR, this payment having to be made on [?].
In consideration for this payment, assigning Bank shall subrogate Intervening
Bank, in accordance with the provisions of article 1250-1(degree) of the Civil
code, in all its rights, shares and privileges against Borrower, including those
arising from the security conferred by Borrower in favor of the Banks by virtue
of the Loan which is object of this Agreement, to the amount which shall have
been paid to it by Intervening Bank.
To this end, the assigning Bank shall give to Intervening Bank whose payment it
shall have received, and on the date of this payment, a subrogatory receipt
drafted in accordance with the model shown in an Appendix forming an integral
part of this deed of assignment.
ARTICLE 2
In consequence of the participation of Intervening Bank in the Loan, the
definition of the term " Banks " in article 1 of this Agreement includes, in
accordance with its terms, Intervening bank so that the whole of the provisions
of this Agreement shall also apply and benefit Intervening Bank.
ARTICLE 3
Intervening Bank declares that it has become acquainted with this Agreement ,
and that it shall comply with it without reservation as if it had been an
original signatory.
Intervening Bank accepts, consequently, the mandate conferred on Agent
authorizing the latter to take for its own account measures and to exert the
powers which are expressly delegated to it under this Agreement, in accordance
with the provisions of article 17 hereof.
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In addition, Intervening Bank declares and affirms to assigning Bank that:
(i) Its decision to take part in the Loan was made based on its
own judgment as regards credit and that by making this
decision, it is not based at all on the declarations of Agent
or any other bank with regard to the credit or the financial
situation of Borrower.
(ii) It has undertaken its own investigations on the entirety of
the assets, solvency and the financial situation of Borrower
and has based its actions on this information only, which it
considered sufficient, to assess the conditions under which
Borrower shall be permitted to meet its obligations under this
Agreement and, more generally, the situation of Borrower; in
future, it shall bear sole responsibility to continue to
evaluate by itself the situation of Borrower and the credit
risk which it incurs, and shall count neither on another Bank
nor on Agent to provide it with any assessment, information or
comment whatever in this regard.
ARTICLE 4
Borrower accepts, in accordance with article 19 of this Agreement , that
Intervening Bank participates in the Loan to the amount stipulated in article 1
of this Deed of Assignment.
ARTICLE 5
For the performance of this Deed, Agreement and their consequences, the parties
hereby make a choice of residence as follows:
- for Borrower: at its office stated at the start hereof,
- for Intervening Bank: in [?],
- for the assigning Bank: in [?]
- for Credit Lyonnais and Agent: at its branch [?] in [?]
Done in [-], on [-]
In [-] copies.
BORROWER AGENT
INTERVENING BANK ASSIGNING BANK
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APPENDIX
SUBROGATORY RECEIPT
I the undersigned [?], acting in the capacity of [?] of the Bank [?], Limited
corporation with capital of [?]EUR, whose main office is in [?], [?]Siren [?]
RCS [?], acknowledge having received on [?], Limited corporation with capital
of [?]EUR, whose main office is in [?], [?], Siren [?] RCS [?], the sum of
[?] EUR (- in figures and letters -).
This sum represents the amount of the participation of the Bank [?], in the
amount of [?]%, in the Loan of an amount of 50,000,000 EUR (fifty million
euros) granted to CEGEDIM, Societe [?] with capital of [?] EUR, whose main
office is in [?] Siren [?] RCS [?], under a loan agreement dated [?] 2003.
In consequence of the payment above of [?] EUR by the Bank [?] to the Bank [?]
and pursuant to article 1250-1(degree) of the Civil Code, the Bank [?] takes
in and invests and subrogates the Bank [?] to the amount of the payment carried
out in all the rights, shares and privileges which it can hold under the
above-mentioned loan agreement, including those arising from the security
conferred by Borrower in favor of the Banks by virtue of the Loan which is the
object of this Agreement.
The terms mentioned in this deed and starting with a capital letter shall have
the same meaning as in the above-mentioned loan agreement.
Done in [-], in two copies, on [-]
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