Ex.10.1.
MULTICURRENCY CREDIT AGREEMENT
August 8, 2000
35,000,000 USD or the equivalent in Euro
between
GENESYS S.A.
the Borrower
FORTIS BANK S.A.
the Arranger
FORTIS BANK S.A.
the Agent
and
the Banks
SUMMARY
Article Page
CHAPTER 1...............................................................
DEFINITIONS AND INTERPRETATION..........................................
1. Definitions and interpretation.................................
CHAPTER 2...............................................................
CREDIT..................................................................
2. Credit Line....................................................
3. Use of Credit..................................................
CHAPTER 3...............................................................
INTEREST................................................................
4. Interest Periods...............................................
5. Interest Rates.................................................
6. Payment of Interest............................................
7. Adjustment of the Credit Margin................................
CHAPTER 4...............................................................
WAIVER AND REPAYMENT....................................................
8. Waiver.........................................................
9. Repayment......................................................
CHAPTER 5...............................................................
ALLOCATION OF RISKS.....................................................
10. Taxation.......................................................
11. New circumstances..............................................
12. General rules..................................................
CHAPTER 6...............................................................
REPRESENTATIONS AND UNDERTAKINGS OF THE BORROWER - EVENTS OF DEFAULT....
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13. Representations of the Borrower................................
14. Undertakings of the Borrower...................................
15. Events of Default..............................................
CHAPTER 7...............................................................
LATE-PAYMENT AND INDEMNIFICATION........................................
16. Late-Payment Interest..........................................
17. Indemnification................................................
CHAPTER 8...............................................................
PAYMENTS................................................................
18. Terms and conditions of payment................................
19. Offset by the Banks or the Agent...............................
20. Equalization of the payments...................................
CHAPTER 9...............................................................
COMMISSIONS, FEES AND RIGHTS............................................
21. Commissions....................................................
22. Fees and rights................................................
CHAPTER 10..............................................................
THE AGENT...............................................................
23. Assignment by the Agent........................................
24. Liabilities....................................................
25. Miscellaneous..................................................
CHAPTER 11..............................................................
ASSIGNMENTS AND TRANSFERS...............................................
26. Transfer by the Borrower.......................................
27. Transfer by the Banks..........................................
28. Credit Branch..................................................
29. Information....................................................
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CHAPTER 12..............................................................
MISCELLANEOUS...........................................................
30. Financial calculations.........................................
31. Remedies.......................................................
32. Severability of the provisions.................................
33. Communications.................................................
34. Modifications..................................................
35. Global effective rate..........................................
CHAPTER 13..............................................................
GOVERNING LAW - JURISDICTION............................................
36. Governing law..................................................
37. Jurisdiction...................................................
ANNEX 1.................................................................
List and Undertakings of the Banks......................................
ANNEX 2.................................................................
Model of Transfer Instrument............................................
ANNEX 3.1...............................................................
Model of Drawing Notice.................................................
ANNEX 3.2...............................................................
Notification of Change in Currency......................................
ANNEX 4.................................................................
Conditions Precedent....................................................
ANNEX 5.................................................................
Pledge of shares of Genesys Conferencing Inc............................
ANNEX 6.................................................................
Pledge of shares of Genesys Conferencing Inc............................
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MULTICURRENCY LOAN AGREEMENT
BY AND BETWEEN:
(1) GENESYS S.A., a French societe anonyme whose registered office is located
at 0, xxx Xxxxx Xxxxx, Xx Xxxxxx, 00000 Xxxxxxxxxxx, registered with the
Registry of Commerce and Companies of Montpellier under number 339 697 021,
(hereinafter the "Borrower")
OF THE FIRST PART,
(2) The financial institutions whose names and addresses are set forth in Annex
1,
(hereinafter the "Banks"),
OF THE SECOND PART,
(3) FORTIS BANK S.A., a societe anonyme whose registered office is located at
Xxxxxxxx xx Xxxx 0, X-0000 Xxxxxxxx, Xxxxxxx, registered with the Registry
of Commerce of Brussels under number 76034,
(hereinafter the "Arranger")
OF THE THIRD PART,
AND
(4) FORTIS BANK S.A., a societe anonyme whose registered office is located at
Xxxxxxxx xx Xxxx 0, X-0000 Xxxxxxxx, Xxxxxxx, registered with the Registry
of Commerce of Brussels under number 76034,
(hereinafter the "Agent")
OF THE FOURTH PART.
WHEREAS:
(A) In order to refinance (i) its indebtedness contracted in respect of the
acquisition of Xxxxxxxx Conferencing, (ii) the expenditures incurred in
respect of its investment program and (iii) its existing financial
indebtedness contracted, in particular, with
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BNP-Paribas and Societe Generale, a revolving credit line of 35,000,000 USD
that was granted on July 14, 1999 by the Arranger to the Borrower (the
"Revolving Credit").
(B) The Banks are ready to grant to the Borrower a middle term multicurrency
credit facility of 35,000,000 USD (thirty five million American dollars)
under the terms and conditions provided for herein and aimed at repaying
the Revolving Credit.
IT HAS BEEN AGREED AS FOLLOWS:
CHAPTER 1
DEFINITIONS AND INTERPRETATION
1. Definitions and interpretation
1.1 Definitions
Except otherwise provided:
"Pledge Instrument" shall mean the pledge agreements entered into between
the Borrower, the Agent and the Banks relating to the shares held by the
Borrower in the capital of (i) Genesys Conferencing Inc and (ii) Genesys
Conferencing Limited respectively entitled Pledge Agreement and Security
over Shares Agreement, which models respectively appear in Annexes 5 and 6.
"Transfer Instrument" shall mean an instrument substantially in the form of
the model appearing in Annex 2.
"Credit Branch" shall mean:
(i) for a Bank signatory of this Agreement, the branch indicated under
its signature at the end of this Agreement;
(ii) for a Bank that acquires this capacity after the conclusion of this
Agreement, the branch identified in paragraph 5 of the Transfer
Instrument, which model appears in Annex 2;
(iii) any other branch designated by a Bank pursuant to the provisions of
Article 28 (Credit Branch).
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"Agent" shall mean Fortis Bank S.A., whose assignment terms are set in
Chapter 10 or any successor in this position who will be substituted for it
pursuant to the provisions of Article 25.3, as the case may be.
"Arranger" shall mean Fortis Bank S.A., whose assignment terms are set in
Article 23.3.
"Advance" shall mean an amount requested by the Borrower in a Drawing
Notice and not yet made available to it, or an amount made available to the
Borrower and not yet repaid.
"Drawing Notice" shall mean a notice of drawing down substantially in the
form of the model appearing in Annex 3.1.
"Bank" shall mean:
(i) each of the financial institutions whose names appear in Annex 1;
(ii) a financial institution who has been assigned the rights or who has
been subrogated the rights of a Bank or a substitute for a Bank
pursuant to a Transfer Instrument.
"Eligible Bank" shall mean:
(a) a Bank who has its Credit Branch in France at the time of assessment
of its capacity as Eligible Bank; or
(b) a bank or a financial institution who, at the time when it becomes a
Bank, benefits from the provisions of a double-taxation treaty so that
it may receive interest exempt from any withholding tax in France
(subject to the signature of any document necessary and the completion
of any action required to benefit from such an exemption).
"Reference Banks" shall mean the registered office in Paris of Banque
Nationale de Paris, Credit Lyonnais and Societe Generale.
"Event of Default" shall mean any of the events mentioned in Article 15
(Events of Default).
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"Potential Event of Default" shall mean any event that other than the
giving of notice or the expiration of a waiting period set forth in Article
15 (Events of Default) would become an Event of Default.
"Agreement" means this Agreement and the annexes hereto, which form an
integral part hereof.
"Cost of Financing" shall mean, for a Bank or for the Agent, the actual
cost (expressed in the form of an annual interest rate) borne by such Bank
or the Agent to finance for a given period any sum owing to it.
"Credit" shall mean the multicurrency credit granted to the Borrower by the
Banks under this Agreement.
"Available Credit" shall mean the total amount of the Available
Undertakings at a given time.
"Revolving Credit" shall have the meaning ascribed to it in paragraph (A)
of the preamble.
"Genesys Conferencing Limited" shall mean an English company whose
registered office is located at Xxxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxx XX00XX.
"Rate Determination Date" shall mean, for an Interest Period (i) the second
Business Day (London) preceding the first day of the Interest Period for
the Advances expressed in the Reference Currency or (ii) the second Target
Day preceding the first day of the Interest Period for the Advances
expressed in the Optional Currency.
"Drawing Date" shall mean the date requested by the Borrower to make
available one or several Advances, or the effective availability date of
one or several Advances.
"Final Drawing Date" shall mean the earlier of the two following dates:
(i) the sixtieth date following the date of this Agreement; and
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(ii) the date on which the Available Undertaking of each of the Banks is
reduced to zero.
"Repayment Date" shall mean September 30, 2001 and the last day of each
successive six-month periods thereafter until and including March 30, 2004.
"Reference Currency" shall mean the American Dollar.
"Optional Currency" shall mean the Euro.
"Interest Difference" shall mean, for a given period (the "calculation
period") and for all or part of an Advance that, pursuant to the provisions
of this Agreement, is not made available to the Borrower or that is the
subject of a repayment prior to its expiry date, the difference between:
(a) the amount of the interest that would have accrued on such amount
during the calculation period, pursuant to the provisions of this
Agreement, and
(b) an amount of interest calculated on this amount at the Reference Rate
for the period beginning on the third Business Day of the calculation
period,
a Interest Difference is "positive" in the event that (a) is greater than
(b).
"Information Document" shall mean the document relating to the Borrower
prepared and delivered, at the Arranger's request, to financial
institutions invited to take part in the Credit.
"Security Documents" shall mean the Pledge Instruments and any document
related thereto.
"EBITDA" shall mean, for each reference period, the operating result of the
Borrower within the meaning of the general accounting plan, as increased by
accrued liabilities and operating provisions and as decreased by the
decreases in accrued liabilities and operating provisions.
"Screen" shall mean the Telerate screen.
"Borrower" shall mean Genesys S.A.
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"Financial Indebtedness" shall mean:
(i) a borrowing under any form whatsoever and in particular under form of
issuance of securities;
(ii) a payment obligation in respect of a leasing agreement or financial
lease (reprocessing in the financial statements within the meaning of
IAS 17 international standards);
(iii) a payment obligation resulting from a surety (cautionnement) or a
guarantee (except for an obligation fully guaranteed by a Security).
"Available Undertaking" shall mean:
(i) for any Bank signatory of this Agreement, the amount expressed in USD
Amount appearing in before its name in Annex 1 (which may be reduced
in accordance with Articles 3.7 (Final Drawing Date), 8 (Waiver),
11.2 (Illegality) or 15.2 (Consequences of an Event of Default), as
decreased by the amount of its Global Participation;
(ii) for a Bank who has become a Bank pursuant to a Transfer Agreement,
the amount expressed in USD Amount appearing in the Transfer
Agreement, (which may be reduced pursuant to the aforementioned
Articles), as decreased by the amount of its Participation in the
Advances made after the effectiveness of the Transfer Instrument.
"EONIA" shall mean the daily rate for deposits in Euro, calculated as from
the rate communicated by a group of contributing banks and broadcast on the
Screen (page 247) under the aegis of the European Banks Federation each
Business Day.
"Participating Member State" shall mean:
(i) the States listed in Article one of the Regulation (EC)
n(degree)974/98 of the Council of May 3, 1998 on the introduction of
Euro;
(ii) any other State that adopts the Euro, as from the date on which the
Euro becomes the currency of such State.
10
"EUR" shall mean the Euro.
"EURIBOR" shall mean the annual rate broadcast on the Screen (page 248)
under the aegis of the European Bank Federation, corresponding to the
inter-bank rate on the Rate Determination Date at 11 a.m. (Brussels time)
for deposits in the Optional Currency made for a period of the same
duration as the reference period.
"Significant Subsidiaries" shall mean Genesys Conferencing Limited and
Genesys Conferencing Inc.
"Consolidated Equity Capital" shall mean the amount of the capital,
premiums and reserves, excess of restated assets, carry forward,
consolidated income, investment subsidies and regulated provisions.
"Genesys Conferencing Inc" shall mean a company governed by the law of the
State of Delaware whose registered office is located at 0000 X. Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000, Xxxxxx Xxxxxx of America.
"Group" shall mean the group of companies constituted by the Borrower and
its subsidiaries.
"Outstanding Amount" shall mean an amount (in principal, interest or other)
due in respect of this Agreement that is not paid on its expiry date or, if
it is due upon demand, remains outstanding after presentation of a request.
"Business Day" shall mean an entire day (other than a Saturday or Sunday)
where the banks are open in London, Paris, Brussels and:
(a) as far as the payment or purchase dates of the Reference Currency are
concerned, in New York; or
(b) as far as the payment or purchase dates of the Optional Currency are
concerned, where this entire day is a Target Day.
"Business Day (Brussels)" shall mean an entire day (other than a Saturday
or Sunday) where the banks are open in Brussels.
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"Business Day (London)" shall mean an entire day (other than a Saturday or
Sunday) where the banks are open in London.
"Business Day (Paris)" shall mean an entire day (other than a Saturday or
Sunday) where the banks are open in Paris.
"Target Date" shall mean an entire day where the TARGET system works for
the settlement of payments in Euros.
"LIBOR" (London Interbank Offered Rate) shall mean the annual rate
broadcast at 11 a.m. (London time) on the Screen (page 3750/3740 or any
other page which would substitute therefor), under the aegis of the British
Bankers Association corresponding to the rate offered on the inter-bank
international market in London on the Rate Determination Date for deposits
in the Reference Currency for a period of same duration as the reference
period.
"Majority of the Banks" shall mean one or several Banks of which the
aggregate Shares exceed 66.67% (sixty six point sixty seven percent).
"Margin" shall mean 200 base points per year which may be reduced pursuant
to the provisions of Article 7 (Adjustment of the Credit Margin).
"USD Amount" shall, for an Advance (i) the amount indicated in a Drawing
Notice when the Reference Currency has been chosen by the Borrower or, (ii)
if the indicated amount is not denominated in the Reference Currency, its
counter-value in the Reference currency, calculated at the Exchange Rate of
the Agent set three Business Days (Paris) before the Drawing Date, as
adjusted to take into account any repayments (other than a repayment
resulting from a change of currency), as provided for in Articles 9.4 and
9.5, and any consolidation of the Advance, as provided for in Article 4.2.
"Notification of Change of Currency" shall mean of notification of change
of currency substantially in the form of the model appearing in Annex 3.2.
The "Participation" of a Bank shall mean that part of an Advance or a
difference referred to in Article 3.9.3 (a) (ii) that the Bank must make
available to the
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Borrower or, with respect to an Advance already made available to the
Borrower, that the Borrower owes to such Bank at a given time.
The "Global Participation" of a Bank shall mean that part of the Loan that
the Borrower owes to such Bank at a given time.
"Party" shall mean the Agent, any Bank, the Arranger or the Borrower.
"Credit Period" shall mean the period between the date of this Agreement
and the date on which, on the one hand, the Available Credit is reduced to
zero and, on the other hand, the Borrower has no further obligations
vis-a-vis the Banks.
"Interest Period" shall mean each period for which an interest rate is or
must be set pursuant to the provisions of Articles 4.1 (Duration of the
Interest Periods), 5.3.2 or 16 (Late-Payment Interests).
"Interim Period" shall mean the period beginning on January 1, 1999 and
ending on December 31, 2001.
"Loan" shall mean the aggregate Advances at a given time.
The "Portion" of a Bank shall mean:
(i) before the first Advance, the percentage of Available Credit
corresponding to its Available Undertaking, and
(ii) after the first Advance, the percentage of the Loan corresponding to
its Global Participation.
"Margin Ratio" shall mean the ratio resulting from the Financial
Indebtedness (numerator) of the Borrower divided by the EBITDA of the
Borrower (denominator).
"Security" shall mean:
(i) any personal guarantee and/or real security interest and any
conventional lien;
(ii) any offset, account merger or similar agreement;
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(iii) any transfer of ownership as guarantee;
(iv) any retained ownership clause (clause de reserve de propriete); and
(v) any agreement whose effect is to create on any of the properties of
the Borrower a preferred situation in favor of a third party.
"Authorized Securities" shall mean:
(i) a Security burdening a property belonging to a company that has
become a member of the Group after the date of this Agreement, if:
(1) the Security has been created before the company becomes a
member of the Group, and
(2) the guaranteed amount has not been increased since the date on
which such company has become a member of the Group;
(ii) any offset or account merger agreement entered into in the normal
context of the relationship between the Borrower and a member of the
Group and its bankers;
(iii) any retained ownership clause accepted by the Borrower or a member of
the Group within the normal context of its activity;
(iv) any other Security if the guaranteed global amount, of the aggregate
of any Security referred to in this paragraph (iv), does not exceed
EUR 3,000,000;
(v) the pledge of business assets (fonds de commerce) made by the
Borrower on March 3, 1997 in favor of Fortis Banque France;
"TARGET" shall mean the Trans-European Automated Real-time Gross Settlement
Express Transfer system of payment.
"Exchange Rate of the Agent" shall mean the "spot" exchange rate used on a
Business Day (Paris) for the purchase of the Optional Currency with the
Reference Currency on the international market of currencies in Paris at
3:00 p.m.
14
"Reference Rate" shall mean for a given period (a "reference period")
corresponding to an Interest Period or any other period during which
interest is accrued, EURIBOR for the Advances denominated in Optional
Currency, or LIBOR for the Advances denominated in Reference Currency.
In the event that the reference period does not correspond to a period for
which the Reference Rate is broadcast, "Reference Rate" shall mean the rate
broadcast for the period immediately longer than the reference period, or
if a rate is also broadcast for a period shorter than the reference period,
the average of both rates.
"Daily Late-Payment Rate" shall mean, for a late-payment day, the EONIA of
the following Business Day.
"USD" or "$" shall mean the American Dollar.
1.2 Interpretation principles
In this Agreement, the following terms and expressions shall have the
following meaning:
an "asset" shall mean any tangible or intangible asset (including all
corporate rights) registered in the balance sheet of a company;
an "action in concert" shall be understood in accordance with the meaning
ascribed to it by Article 356-1 of Law n(degree)66-537 on commercial
companies;
"Annex," "Article," "Chapter" and "Paragraph" shall mean (unless otherwise
provided), an annex, article, chapter or paragraph of this Agreement;
the "control" of a company shall be understood in accordance with the
meaning ascribed to it by Articles 355-1 et seq. of Law n(degree)66-537 on
commercial companies;
references to "rights" or to "obligations" of a Party, unless otherwise
specified, shall mean the rights or obligations of the said Party in
respect of this Agreement;
"adverse effect" shall mean, when this expression is used in connection
with an event, that this event is likely:
15
(i) to significantly and adversely affect the ability of the Borrower to
meet its repayment obligation in respect of the Loan;
(ii) to prevent the Borrower from performing its obligations; or
(iii) to affect the validity of this Agreement and the implementation of
their rights by the other Parties.
"indebtedness" shall include any obligation to pay an amount of money,
whether this obligation is due or not, whether it is certain or not,
current or future;
"euro" shall mean the currency of the Participating Member States;
a company is a "subsidiary" of the Borrower if this company consolidates
its financial statements with those of the Borrower according to the
global consolidation method and pursuant to the consolidation principles
applied in this respect by the Borrower;
"tax" shall include:
(i) all taxes and rights and all obligations of similar nature, as well
as
(ii) all penalties or interest due as a consequence of the non-payment or
late payment of an amount referred to in paragraph (i);
"month" shall mean a period beginning on a day of a calendar month and
ending on the corresponding date (its "normal expiry date") at the same
day of the next calendar month, or (in the event that the following
calendar month does not include the same day) on the last day of this next
calendar month; in any event, if the normal expiry date does not
correspond to a Business Day, it will be postponed to the following
Business Day except if the latter is included in a different calendar
month; in such a case, it will be on the previous Business Day;
References to "payments" that a Party shall make or receive, unless
otherwise set forth, shall mean the payments it shall make or receive in
respect of this Agreement;
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"regulation" shall include all law, decree, ordinance or any other
normative instrument, national or European.
Unless otherwise provided, references to a time of day shall mean Paris
time.
References to an agreement (including this Agreement) or other document
shall mean the agreement or document as amended.
CHAPTER 2
CREDIT
2. Credit Line
2.1 Grant
The Xxxxx xxxxx to the Borrower, who accepts, under the terms and
conditions set forth in this Agreement, a credit line amounting to
35,000,000 USD (thirty five million American dollars).
2.2 Purpose
(a) The Borrower shall use the Credit in one or more Advances in order
to repay the Revolving Credit.
(b) The Banks are not required to verify the use made by the Borrower of
the Advances and shall therefore not be responsible for the
consequences of such use.
2.3 Obligations of the Banks
The obligations of the Banks are joint but not several. Consequently:
(a) no Bank shall be responsible for the non-performance by another Bank
of its obligations, and
(b) the non-performance of its obligations by a Bank should not affect
in any way whatsoever the obligations of the Borrower vis-a-vis the
other Banks.
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2.4 Right of the Banks
(a) The receivables of each Bank vis-a-vis the Borrower with respect to
this Agreement shall be distinct from those of the other Banks.
(b) Subject to the other provisions of this Agreement, each Bank shall
be entitled, independently from the other Banks, to take all such
measures as it deems necessary to preserve or implement its rights.
3. Use of the Credit
3.1 Conditions Precedent
The Borrower may not validly issue a Drawing Notice until the Agent has
confirmed:
(a) that it has received the documents appearing in Annex 4; and
(b) that these documents appear satisfactory to it, in form and
substance.
3.2 Condition Subsequent
The Agreement is subject to the following condition subsequent:
non-compliance by the Borrower with the undertakings provided for in
paragraph 14.1(g).
In the event that this condition subsequent is met, this Agreement shall
be terminated and the parties will be replaced in the state under which
they would have been if this Agreement had not come into force.
3.3 General Conditions of Use
The Borrower may draw down an Advance only if:
(a) within no more than ten Business Days (Paris and Brussels) and no
fewer than five Business Days (Paris and Brussels) before the
relevant Drawing Date, the Agent has received from the Borrower a
Drawing Notice, except for the drawing down of the first Advance
where the Drawing Notice may be received by the Agent no later than
10 a.m. no
18
fewer than three Business Days (Paris and Brussels) before the
Drawing Date;
(b) the Drawing Date involved is a Business Day (Paris), no sooner than
the sixth Business Day (Paris) following the previous Drawing Date
and no later than the Final Drawing Date;
(c) the amount of the Advance, if it is a USD Amount less than the
Available Credit, shall be at least equal to:
(i) 5,000,000 USD or multiples of 5,000,000 USD in the case of an
Advance denominated in the Reference Currency, or, as the case
may be,
(ii) 5,000,000 EUR or multiples of 5,000,000 EUR in the case of an
Advance denominated in the Optional Currency.
(d) the interest rate applicable to an Advance during its first Interest
Period may be determined without applying the provisions of Article
5.3 (Disruptions of the market);
(e) on the Drawing Date, no Event of Default or Potential Event of
Default has occurred or is still occurring, and the representations
appearing in Article 13 (Representations of the Borrower) are
accurate.
3.4 Condition relating to the change of currency
In the event that the Borrower desires to modify an Advance, the Borrower
shall send a Notification of Change of Currency to the Agent within at
least five Business Days (Paris) before the first Business Day (Paris) of
an Interest Period.
3.5 Drawing Notice and Notification of Change of Currency
(a) By delivering Drawing Notice, the Borrower undertakes to borrow, on
the Drawing Date, the requested Advance.
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(b) The Agent shall communicate to the Banks, as soon as possible, the
contents of any Drawing Notice and any Notification of Change of
Currency it may receive.
3.6 Participation of the Banks
Each Bank shall take part in each Advance through its Credit Branch up to
the percentage of Available Credit corresponding to its Available
Undertaking on the Drawing Date.
3.7 Final Drawing Date
On the Final Drawing Date, the Available Credit, and consequently the
Available Undertakings of the Banks, shall automatically be reduced to
zero.
3.8 Waiver of the conditions
The conditions set forth in Articles 3.1 (Conditions precedent), 3.2
(Condition subsequent), 3.3 (General conditions of use) and 3.4 (Condition
relating to the change of currency) are made solely for the benefit of the
Banks who may, therefore, waive them.
3.9 Optional Currency
3.9.1 Choice of currency
(a) The Borrower shall have the possibility to choose and modify the
currency of an Advance, which may either be the Reference Currency,
or the Optional Currency. This choice shall be made either:
(i) in a Drawing Notice for the availability of an Advance; or
(ii) in a Notification of Change of Currency in the event that the
Advance has already been made available and the Borrower shows
its intention to change the currency of the Advance.
(b) In the event that the Borrower delivers a Notification of Change of
Currency and the first day of the contemplated Interest Period is
not a Business Day for the new currency, the Agent shall inform the
Borrower
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and the Banks thereof. The Advance shall remain denominated in the
existing currency until the next Business Day allowing the purchase
of the two currencies, which day will then be the first day of the
Interest Period in question.
3.9.2 Change of currency
(a) If the same Advance is denominated in various currencies during two
successive Interest Periods:
(i) in the event that the currency retained for the second
considered Interest Period is the Optional Currency, the
amount of the Advance in the Optional Currency shall be
calculated by the Agent and shall be equal to the USD Amount
of this Advance at the Exchange Rate of the Agent three
Business Days (Paris) prior to the first day of such second
Interest Period;
(ii) in the event that the currency retained for the second
considered Interest Period is the Reference Currency, the
amount of the Advance shall be equal to the USD Amount of this
Advance;
(iii) subject to the provisions of paragraph (b) below, the Borrower
shall repay the Advance the last day of the first Interest
Period in the currency in which this Advance was denominated;
(iv) subject to the provisions of Article 3.4, the Banks shall make
available to the Agent their Participation in the Advance in
the new currency.
(b) Subject to the consent of the Borrower, the Agent:
(i) shall use the amount advanced by the Banks in accordance with
the provisions of sub-paragraph (a) (iv) above to purchase the
currency in which the Advance is due for the first Interest
Period, and
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(ii) shall allocate the amount so purchased to the repayment of the
sums due by the Borrower with respect to paragraph (a) (iii)
above.
(c) In the event that the amount purchased by the Agent in accordance
with the provisions of sub-paragraph (b)(i) above is less than the
amount to be repaid by the Borrower, the Agent shall inform the
Borrower and the latter shall, on the last day of the first Interest
Period, pay the difference to the Agent (in the currency of the
Advance during the first Interest Period).
(d) If it is not necessary to use the aggregate sums that the Banks have
paid to the Agent in accordance with sub-paragraph (a) (iv) above to
purchase the currency to be repaid by the Borrower, the Agent shall
inform the Borrower of this situation and shall pay to the Borrower,
on the last day of the first Interest Period, this unused amount (in
the new currency); it being understood that the Banks will not be
bound to make such a payment in case of occurrence of an Event of
Default still occurring, in which case the Banks may apply this
amount to the early repayment of the Loan.
3.9.3 Identical Optional Currency for successive Interest Periods
(a) In the event that an Advance is denominated in the Optional Currency
for two successive Interest Periods, the Agent shall calculate the
amount of the Advance in the Optional Currency for the second of
these Interest Periods (the amount in the Optional Currency shall be
equal to the USD Amount of this Advance at the Exchange Rate of the
Agent three Business Days (Paris) prior to the first day of the
second Interest Period), and (subject to paragraph (b) below):
(i) in the event that the calculated amount is less than the
Advance in Optional Currency relating to the first Interest
Period, the Agent shall inform the Borrower and the latter
shall pay the difference on the last day of the first Interest
Period;
22
(ii) in the event that the calculated amount is greater than the
amount of the Advance in Optional Currency relating to the
first Interest Period, the Agent shall inform each Bank and,
if no Event of Default has occurred, each Bank shall pay the
difference up to its Participation, on the last day of the
first Interest Period.
(b) In the event that the calculation made by the Agent pursuant to
paragraph (a) above shows that the amount of the Advance in the
Optional Currency has increased or decreased by at least 5% in
comparison with the USD Amount, no notification will be made by the
Agent and no payment will be required with respect to paragraph (a)
above.
3.9.4 All calculations made by the Agent in accordance with this Article 3.9
shall take into account all normal or early repayment and all
consolidation of any Advance to be carried out on the last day of the
first Interest Period.
23
CHAPTER 3
INTEREST
4. Interest Period
4.1 Duration of the Interest Periods
The period between the Drawing Date of an Advance and the last Repayment
Date shall be divided into successive Interest Periods. The duration of
each Interest Period shall be notified in writing to the Bank by the
Borrower and may be, unless otherwise provided, one, two, three or six
months at the option of the Borrower; it being specified that:
(a) the first Interest Period of an Advance shall begin on its Drawing
Date, and each subsequent Interest Period of this same Advance shall
begin on the last day of the previous Interest Period;
(b) in the event that the Borrower does not notify its election to the
Agent in writing no later than five Business Days (Paris) before the
first day of an Interest Period, the duration of this Interest
Period, subject to the other provisions of this Article, shall be
three months;
(c) the first Interest Period of an Advance made available during a
current Interest Period of an Advance shall end at the same time as
this Interest Period;
(d) any Interest Period that would begin prior to a Repayment Date, but
which would expire either during the month preceding this date, or
on a date subsequent thereto, shall in the first case be extended
and in the second case reduced, in order to terminate on this
Repayment Date.
4.2 Consolidation
When several Interest Periods end on the same date, the Advances to which
they relate shall, in the future, be consolidated according to the
applicable currency in only one Advance.
24
4.3 Notification
The Agent shall communicate to the Banks the duration of each Interest
Period elected by the Borrower no later than three Business Days (Paris
and Brussels) prior to the first day of the relevant Interest Period.
5. Interest Rate
5.1 Normal rate
The annual interest rate applicable to an Advance shall be the sum of the
Reference Rate for the considered Interest Period and the Margin.
5.2 Non-broadcasting of the Reference Rate
In the event that, for any Interest Period, the Reference Rate is not
broadcast on the Rate Determination Date, the Reference Rate shall be
replaced for such Interest Period by:
(a) the interest rate that may be broadcast on the same date under the
aegis of the British Bankers' Association to replace the LIBOR or
the European Union Bank Federation to replace the EURIBOR; or,
failing any,
(b) if at least two Reference Banks communicate to the Agent the rates
to which, at approximately 11:30 a.m. on this same date, they offer
to invest the deposits in the Reference Currency or in the Optional
Currency, as the case may be, with the first rank banks for a period
beginning on the same day and of same duration as the Interest
Period, the arithmetic average of these rates, rounded-up by a
sixteenth, if necessary.
5.3 Disruptions of the market
5.3.1 The Agent shall inform the Borrower and the Banks as soon as possible:
25
(a) in the event that the Reference Rate is not broadcast on the Rate
Determination Date relating to any Interest Period, because the
provisions of Article 5.2 (Non-Broadcasting of the Reference Rate)
do not enable the determination of a replacement rate for the
Reference Rate;
(b) in the event that the Reference Rate (or the interest rate
substituted for the Reference Rate pursuant to the provisions of
Article 5.2 (Non-broadcasting Reference Rate)) during an Interest
Period does not reflect, according to the information communicated
by them to the Agent no later that the Rate Determination Date
relating to this Interest Period, the Financing Cost of one or more
Banks whose aggregate Participation exceeds 35% of the considered
Advance.
5.3.2
(a) In the event referred to in paragraph (a) of Article 5.3.1., the
Interest Period shall be automatically adjusted to one month
(subject to the provisions of Article 4.1 (d)).
(b) In all events referred to in Article 5.3.1., the Agent and the
Borrower will attempt to agree on a replacement rate (Margin
included) applicable to the Interest Period concerned, which will
take into account the circumstances and conditions then offered to
the Banks to finance their Participation in the Advance.
(c) In the event that the Agent and the Borrower reach such an agreement
and that this agreement is approved by the Banks no later than the
last day of such Interest Period, it will be applied to determine
the interest rate applicable during this Period.
(d) Failing any agreement, the interest rate applicable to the
Participation of each Bank during the Interest Period concerned
shall be equal to the sum of the Margin and the Financing Cost of
the relevant Bank during this same Interest Period.
26
5.3.3 Communication of the rate
The Agent shall communicate to the Parties no later than the eighth
Business Day (Paris) after the start of any given Interest Period, the
interest rate applicable to such Interest Period that shall, except for
obvious mistakes, be finally binding upon the Parties.
6. Payment of interest
On the last Business Day (Paris) of each Interest Period, the Borrower
shall pay the interest accrued on the relevant Advance in the Reference
Currency or in the Optional Currency, as the case may be.
7. Adjustment of the Credit Margin
(a) Beginning on the Final Drawing Date, to the extent that the value of
the Margin Ratio indicated in the certificate sent by the Borrower
to the Agent at the end of each reference period has been, in
respect of the elapsed reference period, equal to, or greater than,
the value indicated in column (2) of the chart set forth below, then
subsequent to the date on which the certificate has been delivered,
the Margin in respect of the Interest Period applicable to the
Credit will be that indicated in column (1) of the chart set forth
below on the line that corresponds to the minimum and maximum values
involved.
(b) It is understood:
(i) that the adjustment of the Margin applicable to the Credit
referred to in paragraph (a) above shall be made each quarter
in respect of an annual reference period; it being understood
that an annual reference period shall mean (a) both a 12-month
period corresponding to the duration of the fiscal year of the
Borrower and (b) a 12-month period corresponding to two
consecutive half years that do not belong to the same fiscal
year;
27
(ii) that in case of occurrence of a Potential Event of Default or
an Event of Default during any Interest Period, the Margin
applicable to the Credit shall immediately be brought back to
its maximum value, i.e. two hundred base points per year, as
from the first day of the Interest Period subsequent to any
such Event of Default.
--------------------------------------------------------------------
(1) (2) (3)
Margin applicable to Minimum Value of Maximum value of
the base points the Margin Ratio the Margin Ratio
--------------------------------------------------------------------
200 3 n/a
--------------------------------------------------------------------
165 2 3
--------------------------------------------------------------------
130 1 2
--------------------------------------------------------------------
100 n/a 1
--------------------------------------------------------------------
28
CHAPTER 4
WAIVER AND REPAYMENT
8. Waiver
(a) Subject to at least ten days prior notice to the Agent, the Borrower
may, until the Final Drawing Date, waive all or part of the Credit;
any such waiver shall be final.
(b) Any partial waiver shall relate to an amount equal to 5,000,000 USD
(five million American dollars) and for greater sums, to multiples
of 5,000,000 USD (five million American dollars).
(c) Any such waiver will decrease all Available Undertakings in
proportion to their respective amounts.
9. Repayment
9.1 Repayment at the expiry date
The Borrower shall repay the Loan, on the Repayment Dates set forth below
in the amounts indicated in the right column by a percentage of the amount
of the Loan on the Final Drawing Date:
-----------------------------------------------------------
Repayment Dates Percentage of the Loan
-----------------------------------------------------------
September 30, 2001 15%
March 30, 2002 15%
September 30, 2002 15%
March 30, 2003 15%
September 30, 2003 20%
March 30, 2004 20%
-----------------------------------------------------------
29
9.2 Mandatory repayments
9.2.1 Non-proportional mandatory repayment
In the event where a Bank makes a claim under the provisions of Article
11.2 (Illegality), the Borrower shall, upon request of the Agent, repay
the Global Participation of such Bank on the date corresponding to the
last day of the current Interest Period or the last date authorized by the
regulation that motivated the repayment request if such a Period precedes
such regulation.
9.2.2 Proportional mandatory repayments
(a) In the event that aggregate sales of assets exceed EUR 2,000,000 per
fiscal year, the Borrower shall repay the Loan in an amount up to
the net sale price(s) on the date corresponding to the last day of
the Interest Period in effect at the time of the sale or at the time
of it exceeds the sale threshold.
(b) The Borrower shall repay the Loan within 30 days after notification
by the Agent following (i) the acquisition of control of the
Borrower by a person (or group of persons acting in concert) or (ii)
the change of the person (or group of person acting in concert) who
controls the Borrower.
9.3 Proportional voluntary repayment
(a) Beginning on the Final Drawing Date and subject to fifteen-days
prior notice to the Agent, the Borrower may repay in advance without
fees or penalties all or part of the Loan.
(b) Such a repayment may be made only on the last day of an Interest
Period.
(c) Such a repayment, if it does not relate to the aggregate Loan, shall
relate to an amount equal to 5,000,000 USD and, for greater sums in
multiples of 5,000,000 USD, or if it is made in Optional Currency,
equal to an
30
amount of 5,000,000 EUR and, for greater sums in multiples of
5,000,000 EUR.
(d) Any such sums so repaid may be borrowed once again.
9.4 Non-proportional voluntary repayment
(a) The Borrower may repay (in all but not in part) the Global
Participation of a Bank who has requested a payment pursuant to
Article 10 (Taxation) or 11.1 (Additional costs) provided that the
Borrower has given at least 10-days notice to the Agent and, at the
time of the notice, the circumstances that motivated the
indemnification request are continuing.
(b) Such a repayment may only be made on the last day of an Interest
Period.
(c) As soon as the Borrower has notified the Agent of its repayment of
the Global Participation of a Bank pursuant to paragraph (a) of this
Article 9.4, the Available Undertaking of this Bank shall be reduced
to zero.
9.5 Rules generally applied to early repayments
(a) By giving a prior notice pursuant to Article 9.3 (Proportional
voluntary repayment) or 9.4 (Non-proportional voluntary repayment),
the Borrower shall undertake to make the repayment that is the
subject of the notice on the date set forth in the notice.
(b) Any repayment in respect of Article 9.3 (Proportional voluntary
repayment) shall be applied to the repayment installments referred
to in Article 9.1 (Repayment at expiry date) that are not yet due
and payable, and shall commence with the most removed installments.
(c) Any repayment in respect of paragraph 3.9.2(d), Article 9.2.1
(non-proportional mandatory repayment) or 9.4 (Non-proportional
voluntary repayment) shall be applied to the repayment installments
referred to in
31
Article 9.1 (Repayment at expiry date) not yet due and payable, in
proportion to their respective amounts.
9.6 Rules generally applied to repayments
In the event that the Borrower must repay all or part of the Loan in
advance (including after the occurrence of an Event of Default), it shall
at the same time pay all interest accrued on the repaid amounts and any
other amount due in respect of this Agreement, notwithstanding any other
provisions setting forth a different payment date.
32
CHAPTER 5
ALLOCATION OF RISKS
10. Taxation
10.1 Withholding taxes
(a) All payments made by the Borrower (including in respect of this
Article 10) to an Eligible Bank, to the Arranger or to the Agent
shall be made net and without deduction of any tax in France,
except if the Borrower (or an institution paying on its behalf)
must carry out a tax withdrawal or withholding (a
"withholding"), in which case the Borrower shall increase the
amount of the payment so that after having deducted the
withholding, the Party entitled to payment receives a net amount
equal to the amount that it would have received had there been
no withholding.
(b) If the Borrower must effect a withholding (or, further, if the
rate or calculation method of any withholding is modified), it
will promptly inform the Agent thereof.
(c) If the Borrower must implement a withholding, it will pay the
amount to the relevant authority on due date and will deliver to
the Agent, within thirty days after such payment, the original
of the receipt delivered to it (or a certified copy thereof).
10.2 Eligible Banks
10.2.1 If the Borrower must implement a withdrawal or a withholding, the
Borrower will not however be bound to increase the amount due to the
Eligible Bank pursuant to Article 10.1 (Withholding tax) if:
(i) a Bank, not residing in France for tax purposes, but having a
Credit Branch in France, could have obtained an exemption from
withdrawal or withholding by providing to the Agent the
necessary documents (required by the French tax authorities)
evidencing that the interest paid in accordance with this
Agreement is integrated in the taxable income of this Credit
Branch;
33
(ii) a Bank referred to in paragraph (b) of the definition of the
Eligible Bank, could have obtained an exemption from withdrawal
or withholding by signing the necessary documents or by carrying
out any similar action, in order to obtain such an exemption in
accordance with the provision of the applicable non-double
taxation treaty.
10.3 Tax Credit
(a) This Article applies in the event that a Bank, after having
received an increased payment pursuant to paragraph (a) of
Article 10.1 (Withholding Tax) determines (its assessment in
this respect being authoritative) that it has actually and
definitively obtained a tax benefit in the form of a tax credit
or repayment allocable to such increase.
(b) In such a case, the Bank will repay as soon as possible to the
Borrower a total amount equal to the value of this benefit,
after deduction of any fee and tax that may be borne by such
Bank in relation to the repayment, such that the Bank does not
incur any charge due thereon, and provided that the repayment
does not affect the tax credit or repayment obtained by the
Bank. Each Bank shall have absolute discretion with respect to
the obtaining or use of a tax credit or a repayment and does not
need to report to the Borrower nor provide it with any
information whatsoever with respect to its tax position.
10.4 Other taxes
Subject to the provisions of Article 10.1 (Withholding tax), the
Borrower shall, upon request of the Agent, pay to another Party the
amount of any tax that the such Party owes due to a payment received or
to be received, or a payment it should have received under tax
regulations (including in respect of this Article 10 (Taxation), except
if it is a taxation in the State in which the registered office of such
Party or its Credit Branch is located assessed on the net income of the
Credit Branch.
34
11. New circumstances
11.1 Additional costs
(a) Within the meaning of this Agreement, a "change of regulation"
shall include:
(i) any modification in force after the date of this
Agreement, of the regulations applicable on such date;
(ii) any modification brought by a relevant authority after
the date of this Agreement to the interpretation of a
regulation or to the conditions in which it intends to
have it applied;
(iii) communication to a Bank of a recommendation, instruction
or request by a central bank, a tax, monetary or other
authority, even if it is not mandatory, if it would be
in compliance with the bank practices in the country
concerned with such compliance.
(b) The conditions of the remuneration of the Banks have been set
according to credit, tax, monetary and professional regulations
applicable on the date of this Agreement (in particular those
concerning risk control and solvency of credit institutions).
Consequently, if as a result of a change of regulation:
(i) a Bank decreases the net remuneration of its capital or
the net remuneration received due to its Global
Participation; or
(ii) a Bank incurs a cost (or an additional cost, as the case
may be) due to its obligations as Bank or due to its
Global Participation;
the Borrower shall pay, upon the Agent's request, the sums
necessary to indemnify such Bank for the decrease in
remuneration referred to in paragraph (i) or the costs referred
to in paragraph (ii) except, in the latter case, if the cost
corresponds to a tax being the purpose of Article 10 (Taxation).
35
11.2 Illegality
In the event that it would become illegal for a Bank to perform its
obligations or to finance or maintain its Global Participation:
(a) its obligation to participate in the Advances shall terminate
and its Available Undertaking shall be automatically reduced to
zero; and
(b) the provisions of Articles 9.2 and 9.5 shall become applicable.
12. General rules
(a) Any Bank intending to claim the provisions of Article 10.1
(Withholding tax), Article 10.4 (Other Taxes), 11.1 (Additional
costs) or 11.2 (Illegality) shall:
(i) give notification thereof to the Agent specifying the
grounds of its claim and enclosing all relevant
supporting documents (with no obligation to disclose
confidential information);
(ii) contemplate, after consultation with the Agent and the
Borrower, the measures it might take (in particular by
changing its Credit Branch or by substituting another
financial institution for it) to minimize the
consequences for the Borrower of the circumstances that
motivated any such notification, if such measures would
not lead such Bank to incur damageable consequences or
costs not offset by the Borrower.
(b) The Agent shall, as soon as possible, communicate to the
Borrower any notification received from a Bank in respect of
this Article with the supporting document related thereto.
36
CHAPTER 6
REPRESENTATIONS AND UNDERTAKINGS OF THE BORROWER - EVENTS OF
DEFAULT
13. Representations of the Borrower
The Borrower makes the following representations to the other Parties
and acknowledges that the latter have entered into this Agreement based
on these representations, whose accuracy on the date of signature of
this Agreement, on the Drawing Dates and on the first day of each
Interest Period is a condition of their consent and the willingness of
the Banks to make the Advances:
(a) The Borrower is a duly incorporated French societe anonyme.
(b) The Borrower has the required capacity to enter into this
Agreement and the Security Documents.
(c) The signatory of this Agreement and the Security Documents on
behalf of the Borrower has all necessary powers to enter into
this Agreement and the Security Documents in the name and on
behalf of the Borrower.
(d) The signature of this Agreement and the Security Documents and
the performance of the obligations arising out thereof for the
Borrower do not contravene:
(i) any provision of its by-laws;
(ii) any obligation vis-a-vis any third party (that could
have an adverse effect), and
(iii) any regulation applicable to it.
(e) No agreement or authorization from any administrative authority
is required to allow the Borrower to enter into this Agreement
and Security Documents and to perform its obligations;
(f) The Borrower's obligations are valid and are binding upon it.
37
(g) Except for the Authorized Securities and the Debenture governed
by English law constituted in favor of The Royal Bank of
Scotland on May 12, 2000, which should be released no later than
October 1, 2000 pursuant to the Articles 14.1 (e) and 14.1 (g),
no security burdens the assets of the Borrower or the members of
the Group.
(h) No dispute is pending and the Borrower has received no
notification by a third party of its intention to initiate a
dispute, which (in either case) outcome would have an adverse
effect.
(i) No Event of Default or Potential Event of Default has occurred
that is continuing.
(j) Any possible failures by the Borrower or the members of the
Group to comply with their obligations vis-a-vis third parties
on the date of this representation are not such as to have an
adverse effect.
(k) Written information provided by the Borrower to the Arranger was
accurate on the date on which it was given.
(l) The Information Document is accurate and complete and the
forecasts it includes have been prepared from reasonable
assumptions.
(m) The most recent consolidated financial statements of the
Borrower (i.e. those relating to the fiscal year ended December
31, 1999) certified by its statutory auditors, have been
prepared according to the accounting principles generally
applied in France and give an accurate image of the financial
position and the operations of the Borrower. There has been no
material adverse change in the financial position or in the
assets and liabilities of the Borrower since the date of its
most recent financial statements certified by its statutory
auditors.
(n) The Borrower has paid on the date on which they are due all
taxes for which it is liable.
(o) The Borrower is not under cessation of payment, is not the
subject of a bankruptcy judicial reorganization (procedure de
redressement) or
38
judicial liquidation, an amicable settlement (procedure de
reglement amiable) pursuant to the provisions of the Law
n(degree)84-48 of March 1, 1984, or judicial proceedings,
initiated outside of France, aimed at rescheduling or
reorganizing its debts, or aimed at a collective settlement of
its liabilities.
14. Undertakings of the Borrower
14.1 Undertaking to do
During the Credit Period, the Borrower undertakes to:
(a) provide the Agent with:
(i) for each of its fiscal years, no later than 180 days
after the end of its fiscal year, its annual report
including its corporate and consolidated accounts
(balance sheet, profit and loss statement and notes
thereon) certified by its statutory auditors;
(ii) no later than 90 days after the end of the first half of
its fiscal year, its half-year balance sheet and profit
and loss statement and the balance sheet of the profit
and loss statement of the members of the Group;
(iii) no later than 30 days after the end of the first half of
its fiscal year and after the end of each fiscal year, a
statement of the asset sales that have occurred during
the relevant period indicating the nature of the assets
sold and their sale price;
(iv) as soon as possible, any such other information on the
financial position or the business of the Borrower as
the Agent might reasonably request;
(b) immediately inform the Agent of any change concerning the
persons empowered to represent the Borrower:
(c)
39
(i) notify to the Agent, as soon as possible, of any Event
of Default or any Potential Event of Default, of which
it has knowledge;
(ii) confirm, upon the Agent's request, that no Event of
Default or Potential Event of Default has occurred or is
still occurring, except for those that would have
already been notified and those specified in the
confirmation, if any; and
(iii) indicate the measures it takes or contemplates to take
to remedy any Event of Default or Potential Event of
Default;
(d) obtain (or renew) and carry out all authorizations or steps
necessary to allow the Borrower to duly and validly perform its
obligations;
(e) ensure that no Security, other than the Authorized Securities
and until October 1, 2000 the Debenture governed by English Law
mentioned in Article 3.2, burdens its assets or those of the
Significant Subsidiaries;
(f) not grant any security, guarantee or right whatsoever such as to
prevail in any way whatsoever over the rights of the Banks with
respect to this Agreement during the entire term of this
Agreement; it being understood that the Borrower may grant
securities, guarantees or rights so long as the Banks of the
same rank benefit therefrom or are granted any such other
security as they may deem equivalent to their rights in respect
of this Agreement;
(g) the Borrower undertakes that the Credit granted by The Royal
Bank of Scotland and pursuant to which Genesys Conferencing
Limited has constituted a Debenture governed by English Law in
favor of The Royal Bank of Scotland plc, be repaid no later than
August 18, 2000 and that the release of the above-mentioned
Debenture be obtained no later than October 1, 2000;
(h) draw up and cause the members of the Group to draw up the
corporate accounts to be delivered to the Agent pursuant to the
provisions of subparagraphs 14.1 (a) (i) and 14.1 (a) (ii)
pursuant to the accounting
40
principles generally applied in France and in each country
concerned to draw up the said accounts by complying with the
presentation and method used for the accounts relating to the
fiscal year ended December 31, 1999 and not to change or cause
that the members of the Group do not change the accounting
principles and methods each year, unless the Borrower notifies
to the Agent any substantial change to these accounting
principles or methods applicable both to the Borrower and a
member of the Group, in which case the Borrower (or its
statutory auditors) shall:
(i) provide a description of the changes and adjustments
that should be made on the last delivered accounts in
accordance with subparagraphs 14.1 (a) (i) and 14.1 (a)
(ii), in order for the accounts to be presented and
analyzed in a way identical to those relating to the
fiscal year ended December 31, 1999;
(ii) provide any information reasonably requested by the
Agent and allow the Banks to verify if the thresholds
referred to in Article 14.3 (Financial undertakings) are
complied with and to carry out a precise comparison
between the last accounts delivered to the Agent and
those relating to the fiscal year ended December 31,
1999.
Any reference in this Agreement to the accounts provided in the
context of this paragraph (h) shall include a reference to the
accounts as modified or adjusted in order to be presented and
analyzed in a way identical to those relating to the fiscal year
ended December 31, 1999.
14.2 Negative Undertakings
During the entire Credit Period, the Borrower undertakes:
(a) to cause the shareholders' meeting of the Borrower not to
propose or distribute dividends if the Borrower is not in
compliance with the financial undertaking provided for in
Article 14.3 (Financial undertakings);
41
(b) not to carry out or cause the members of the Group not to carry
out one (or more) acquisition(s) during the same fiscal year (i)
whose effect would be to increase the financial indebtedness of
the Group more than EUR 15,000,000, or (ii) that would be
entered into for a global amount greater than EUR 15,000,000;
and
(c) not to sell or transfer in any other way any securities or
corporate rights that the Borrower directly or indirectly holds
in its Significant Subsidiaries and not to decrease its equity
interest in the capital and voting rights of the Significant
Subsidiaries to a level less than 95%, unless the Agent, acting
upon instructions of the Majority of the Banks, authorizes the
Borrower to carry out such transactions.
14.3 Financial undertakings
The Borrower undertakes that its EBITDA shall be at least equal for the
reference periods mentioned in the left column of the chart below to the
values indicated in the right column:
----------------------------------------------------------
Reference Periods EBITDA
----------------------------------------------------------
January 1 to December 31, 2000 USD 11,000,000
----------------------------------------------------------
January 1 to December 31, 2001 USD 16,000,000
----------------------------------------------------------
January 1 to December 31, 2002 USD 26,000,000
----------------------------------------------------------
January 1 to December 31, 2003 USD 31,000,000
----------------------------------------------------------
The Borrower undertakes to provide to the Agent for this purpose:
(a) an annual certificate indicating the amount of the EBITDA and
its Financial Indebtedness for each reference period referred to
above. This certificate shall be delivered no later than six
months after the expiration of each reference period referred to
above, and
(b) an annual certificate indicating the amount of the EBITDA and
its Financial Indebtedness for each reference period from June
30 of a given fiscal year to June 30 of the following year. This
certificate shall be delivered no later than September 30 of
each year.
42
The Borrower undertakes to keep a minimum amount of EUR 50,000,000 of
Consolidated Equity Capital during the entire term of the Credit.
15. Events of Default
15.1 The following events constitute Events of Default:
(a) non-payment by the Borrower on the due date of any amount
payable in respect of this Agreement except if this non-payment
is due to technical problems affecting the system of transfer of
funds, as long as the amount is paid within two (2) Business
Days (Paris) following its due date;
(b) breach by the Borrower of any of its obligations (other than a
payment obligation);
(c) inaccuracy at the time it is made of any of the representations
listed in Article 13 (Representations of the Borrower) or, on
the date of its provision, of any other information communicated
by the Borrower in respect of this Agreement, except (i) if such
inaccuracy results from an honest mistake committed by the
Borrower or (ii) if such inaccuracy has no material effect;
(d) the Borrower or a Significant Subsidiary does not pay on any due
date any amount in respect of any Financial Indebtedness or the
creditor of the Financial Indebtedness of the Borrower or a
Significant Subsidiary orders or is entitled to order the
forfeiture of the due date, except if the global amount of the
Financial Indebtedness unpaid in the first case, or the amount
of the Financial Indebtedness so become payable in the second
case, is less than EUR 1,000,000;
(e) the Borrower or a Significant Subsidiary initiates discussions
with its creditors (or some of them) in order to reschedule or
reorganize its debts or part of them;
(f) the appointment of an ad hoc agent, whose assignment includes to
attempt to reach an agreement between the Borrower or a
Significant Subsidiary and their creditors (or some of them);
43
(g) the initiation vis-a-vis the Borrower or a Significant
Subsidiary of amicable settlement proceedings pursuant to the
provisions of Law n(degree)84-48 of March 1, 1984;
(h) the Borrower or a Significant Subsidiary is in a state of
nonpayment (etat de cessation des paiements);
(i) the initiation vis-a-vis the Borrower or a Significant
Subsidiary of a judicial bankruptcy reorganization or judicial
liquidation;
(j) dissolution of the Borrower;
(k) merger or spin-off of the Borrower or a member of the Group, if
it includes a long-lasting adverse effect;
(l) it is or becomes illegal pursuant to French Law for the Borrower
to perform its payment obligations in respect of this Agreement;
(m) the occurrence of a serious event that includes a long-lasting
adverse effect; and
(n) the Borrower or any member of the Group ceases its activity as
it exists on the date of signature of this Agreement or
substantially modifies its activity.
15.2 Consequences of an Event of Default
As soon as an Event of Default occurs and at any time further thereto,
the Agent, acting upon instruction of the Majority of the Banks, by
simple written notice to the Borrower and without summons, injunction or
other court or out-of-court formality, but subject to the mandatory
provisions of Law n(degree)85-98 of January 25, 1985, may:
(a) cancel the Available Credit, which by reducing to zero the
Available Undertakings of the Banks, will result in releasing
any obligation to do make further Advances; and
44
(b) declare the Loan immediately due and payable or payable upon
simple subsequent request of the Agent.
15.3 In the event that, pursuant to Article 15.2 (Consequence of an Event of
Default) the Agent would have declared the Loan payable upon simple
request from it, it may, upon instruction of the Majority of the Banks,
at any subsequent time:
(a) retract its declarations; or
(b) request the repayment of the Loan on the date it sets, which
will make the Loan due and payable on such date.
45
CHAPTER 7
LATE-PAYMENT INTEREST AND INDEMNIFICATION
16. Late-payment interest
16.1 Late-payment interest rates
The Borrower shall, to the extent authorized by Law (but without summons
and without prejudice to the other rights of the Banks), pay the
interest on any Outstanding Amount, calculated from its due date until
its date of actual payment (the "late-payment period") pursuant to the
provisions of paragraphs (a) and (b) below, at the Agent's option (which
the latter may change once or several times during the late-payment
period):
(a) If the Agent elects this option (a), the late-payment interest
will be calculated for each day of the late-payment period, at
the Daily Late-Payment Rate applicable, as increased by the
Margin and 1.5%.
(b)
(i) If the Agent elects this option (b), the late-payment
interest will be calculated compared to successive
Interest Periods (the first one beginning on the expiry
date of the Outstanding Amount and the others on the
last day of the previous Interest Period).
(ii) The duration of each of these Interest Periods shall be
decided by the Agent, but if the Outstanding Amount
corresponds to an amount in principal that has become
payable before the last day of an Interest Period (a
"Broken-off Interest Period"), its first Interest Period
will have a duration equal to the residual duration of
the Broken-off Interest Period.
(iii) the interest rate applicable to a given Interest Period
shall be the Reference Rate applicable to this Interest
Period as increased by the Margin and 1.5%, except the
case of an Interest Period adjusted to correspond to the
residual duration of a Broken-off
46
Interest Period, to which the interest rate already
established for the Broken-off Interest Period will
apply, as increased by 1.5%.
16.2 Communications
The Agent shall communicate to the Borrower and the Banks:
(a) its election with respect to the terms and conditions of
calculation of the late-payment interest,
(b) in case of application of paragraph (b) of Article 16.1
(Late-payment interest rate), no later than 9:00 a.m. on the
Rate Determination Date of each Interest Period, its duration,
and
(c) the late-payment interest rate.
16.3 Payment
The late-payment interest in respect of an Outstanding Amount shall be
payable:
(a) either upon the Agent's request (in the event of interest
calculated based on the Daily Late-Payment Rate), or
(b) the last day of the Interest Period in respect of which it is
due (in the event of interest calculated based on the Reference
Rate).
16.4 Other provisions applicable to Outstanding Amounts
The provisions of Articles 11.1 (Additional costs) and 17.2 (Interest
Differences) apply to Outstanding Amounts in the same manner as they
apply to Advances.
17. Indemnification
17.1 General cases
The Borrower shall indemnify each Bank and the Agent for the reasonable
costs incurred and the losses suffered by them as a result (i) of the
performance of their rights in respect of this Agreement and (ii) of the
non-performance of the Borrower's obligations (but the calculation of
the losses or the costs incurred
47
shall take into account the interest possibly due in respect of Article
16 (Late-payment interest)).
17.2 Interest Differences
In the event that:
(a) the participation of a Bank in an Advance requested by the
Borrower would not be made available to the latter, pursuant to
the provisions of this Agreement, or
(b) the participation of a Bank in an Advance would be repaid prior
to the end of the Interest Period,
the Borrower shall pay to the Bank the possible positive Interest
Difference:
(i) in the event referred to in paragraph (a) of this Article, on a
period of same duration as that which would have been the first
Interest Period of the Advance, and
(ii) in the event referred to in paragraph (b) of this Article, for a
period between the date of repayment and the last day of the
Interest Period.
48
CHAPTER 8
PAYMENTS
18. Terms and conditions of payment
18.1 Money of account and payment
(a) Subject to the provisions of this Article, the Reference
Currency is the money of account and payment of this Agreement.
However, the Borrower shall:
(i) repay an Advance on its payment date in the currency in
which this Advance is denominated;
(ii) pay any amount due as interest in respect of an Advance
in the currency in which such Advance is denominated;
(iii) repay all fees and expenses borne in the currency in
which they have been incurred;
(iv) carry out all indemnification payments requested of it
in respect of Article 10.4 (Other taxes) or Article 11.1
(Additional costs) in the currency in which the amount
subject to such claim is denominated; and
(v) pay all amount denominated in a currency other than the
Reference Currency in such currency.
(b) For the payments in Optional Currency during the Interim Period,
each Party:
(i) may, as it concerns a payment to be settled by the
credit of an account in France, carry out the payment in
Francs or in euro;
(ii) shall, as it concerns a payment to be settled by the
credit of an account in another Participating Member
State, carry out the payment in euro.
49
18.2 Payment in another currency
(a) This Article 18.2 shall apply in the event that, for the purpose
of court proceedings, court decision, enforcement means or
declaration in reorganization proceedings initiated vis-a-vis
the Borrower, it would be necessary to convert a payment due to
a payment to another Party in a currency (the "conversion
currency") other than that in which, under this Agreement, it
must be paid (the "contractual currency").
(b) In such a case, the Borrower shall indemnify this Party for the
possible loss resulting from a difference of exchange rate
between the date on which the conversion has been made and the
date on which the payment is received in conversion currency, as
well as possible expenses.
18.3 Payments to the Agent
Except for the amounts due to the Arranger, the Borrower shall delivered
all its payments to the Agent on the accounts whose details are set
forth on the signature pages of this Agreement. The Agent, except for
the payments received on its own behalf, receives them on behalf of the
Parties entitled thereto.
18.4 Terms and conditions of payment
(a) All payments to be made by the Borrower or a Bank shall be
carried out at the due date value in immediately available funds
and freely transferable, by the credit of the Agent's account as
the latter might notify.
(b) The Agent shall repay to a Party all payments it receives on the
latter's behalf, same value date, by causing the account whose
necessary information has been provided by such Party to be
credited.
(c) Any payment due on a date that does not correspond to a Business
Day shall be made on the following Business Day, except if such
action results in removing the payment to the following calendar
month, the payment shall be made on the last Business Day of the
current calendar month.
50
18.5 Payments by the Agent
(a) The Agent may deem that the funds corresponding to any payment
due to a Party have been transferred to it on the date on which
such payment is due and consequently carry out the corresponding
payment. However, if, without having actually received the
corresponding funds, it pays an amount to a Party, the latter
shall upon first request of the Agent, repay such amount, plus
any corresponding interest for the period elapsed from such
payment until the repayment, calculated at the annual rate
corresponding to the Financing Cost of the amount for the Agent
(with respect to amounts paid to a Bank) or at the same rate
increased by the Margin (with respect to amounts paid to the
Borrower).
(b) The Agent shall have no liability vis-a-vis another Party for
the possible late-payment made by such Party, provided that it
has implemented the measures set forth by the offset system
selected by it for payments in euro such that payment is
received on its due date and for due value at the credit of such
Party's account.
18.6 Offset by the Borrower
The Borrower shall carry out all its payments without reduction or
offset of any kind whatsoever, except for withholdings set forth to in
Article 10.1 (Withholding taxes), if any.
18.7 Allocation of Payments
The Agent, notwithstanding any allocation by the Borrower and unless
otherwise agreed by all of the Banks, shall allocate the amounts
received by it in respect of this Agreement in the following order:
(a) to the payment of the fees and expenses incurred by the Agent
while exercising its assignment;
(b) to the payment to the Banks of the late-payment interest accrued
on an Outstanding Amount, in proportion to the part of the
Outstanding Amount that is respectively due to them;
51
(c) to the payment to the Banks in proportion to their respective
Global Participation, of the accrued interest;
(d) to the payment to the Banks in proportion to their respective
Global Participation, of any amount in principal payable but
outstanding;
(e) to the payment of any other amount payable but outstanding (if
it is an amount due to several Banks, in proportion to the part
of the amount respectively due to them).
19. Offset by the Banks or the Agent
Subject to the provisions of any specific agreement, the Borrower
irrevocably authorizes each of the other Parties to offset the credit
balance of the accounts it might or may have with this Party all
payments due by it and to carry out the exchange transactions necessary
for this purpose based on the Agent's Exchange Rate.
20. Equalization of the payments
20.1 Redistribution
Subject to the provisions of Article 20.3 (Court proceedings), in the
event that a Bank (a "receiving Bank") due to the allocation (in
particular through offset) of an amount received from the Borrower,
would receive an amount in excess, i.e. a larger portion of an amount
due to itself and to several other Banks (the "other Banks") than it
would have received if the such amount had been paid by the Borrower to
the Agent and allocated by the latter pursuant to the provisions of
Article 18.7 (Allocation of the payments):
(a) it shall immediately inform the Agent thereof (who will inform
as soon as possible the other Banks) and pay to the Agent the
amount in excess;
(b) as soon as possible, the Agent shall allocate the amount in
excess among the other Banks in proportion to their respective
part of the amount due by the Borrower against delivery by each
of them of a subrogation receipt including a waiver to profit
from the Article 1252
52
of the French Civil Code, which the Agent shall deliver to the
receiving Bank;
(c) the receiving Bank will therefore be subrogated in the rights of
the other Banks vis-a-vis the Borrower, so that the latter will
owe vis-a-vis the receiving Bank an amount equal to the amount
in excess.
20.2 Refunds
In the event that a receiving Bank would be bound to refund to the
Borrower an amount in excess after its allocation among the other Banks
pursuant to the provisions of Article 20.1 (Redistribution):
(a) each of the other Banks will repay to the receiving Bank an
amount equal to the portion of the amount in excess it has
received against delivery of a subrogation receipt including a
waiver to profit from Article 1252 of the French Civil Code; and
(b) each Bank having carried out such a refund shall therefore be
subrogated, up to this amount, in the rights of the receiving
Bank vis-a-vis the Borrower.
20.3 Court proceedings
In the event that a Bank would become a receiving Bank following court
proceedings initiated by it after notification to the Agent, those Banks
will not be deemed an "other Bank" for the purposes of paragraphs (a)
and (b) of Article 20.1 (Redistribution) who, while being able to join
the proceedings or initiate other proceedings for the payment of the
portion reverting to it the amount due by the Borrower, refrain from
doing so.
53
CHAPTER 9
COMMISSION, FEES AND RIGHTS
21. Commissions
21.1 Engagement commission
(a) The Borrower shall pay to each Bank an engagement commission of
30 base points per year, i.e. a 0.30% rate per year, on the
amount of its Available Undertaking for the period from the date
of signature of this Agreement until the Final Drawing Date.
(b) The Borrower shall pay the engagement commission at the expiry
date, the last day of each successive one-month period as from
the date of signature of this Agreement and for the last time on
the Final Drawing Date.
21.2 Arranger's commission
The Borrower shall pay to the Arranger a Credit arrangement commission
pursuant to a a separate agreement.
21.3 Agent's commission
The Borrower shall pay to the Agent an annual Agent's commission
pursuant to a separate agreement.
22. Fees and rights
22.1 Fees incurred by the Arranger and the Agent
The Borrower shall repay:
(a) to the Arranger, all reasonable fees and expenses (including the
fees and expenses of counsel) as increased by applicable taxes
incurred in connection with the preparation, negotiation and
consummation of this Agreement and the performance of the
conditions precedent set forth in Article 3.1 (Conditions
Precedent) no later than 15-days from the date of notice of said
payments by the Arranger;
54
(b) to the Agent on its behalf and on behalf of the Banks, upon
first request of the Agent, all reasonable fees and expenses
(including the fees and expenses of advisers and lawyers)
increased by applicable taxes that the Agent or the Banks may
incur:
(i) upon request of the Borrower, for the purposes of
modification of this Agreement or waiver by the Banks of
their rights; and
(ii) for the purpose of preserving their rights (in
particular the fees incurred to assess the existence of
an Event of Default and the means to remedy it) or
obtain the performance of the Borrower's obligations.
22.2 Stamp and registration duties
All stamp or registration duties and other similar rights to which this
Agreement may give rise in France shall be exclusively for the account
of the Borrower.
22.3 Allocation to the Banks
In the event that the Borrower does not repay the Arranger or the Agent
the fees and expenses incurred by them, in breach of the provisions of
Articles 22.1 (Fees incurred by the Arranger and the Agent) and 22.2
(Stamp and registration duties), the Banks shall substitute for the
Borrower, in proportion to their respective Portion, with the Borrower
responsible for repayment any amounts thus paid by them as soon as
possible.
55
CHAPTER 10
THE AGENT
23. Assignment of the Agent
23.1 Powers and authority
(a) Each Bank hereby grants to the Agent (who hereby accepts) the
power to represent it by exercising on its behalf all powers
expressly granted to it under this Agreement and the Security
Documents, as well as those that reasonably result therefrom,
other than the power to initiate court proceedings and to
settle.
(b) The Agent, who shall not be bound to take any measure on its own
initiative, may ask for direction from the Banks and shall be
bound to act or to refrain from acting, as the case may be, in
accordance with the instructions given by the Majority of the
Banks (or all the Banks when this Agreement or the Security
Documents provide therefor), both in the event that it will have
consulted with the Banks and in the event that the instructions
result from an initiative of the latter.
(c) The Agent is not the representative of the Borrower, except for
the purpose of the signature of a Transfer Instrument.
(d) Subject to the provisions of subparagraphs (a) and (b) above,
each Bank gives power to the Agent to sign in its name and on
its behalf (i) the Security Documents, (ii) any other document
of any nature whatsoever relating to the Security Documents
whether at the time of their consummation or at the time of the
incurrence of the securities they create, and (iii) all
documents subsequent to the incurrence of the securities created
in accordance with the Security Documents.
56
23.2 Exercise by the Agent of its assignment
The Agent:
(a) may resort to, when it deems it necessary, the services of
lawyers, counsels, chartered accountants and such other experts
as it may choose;
(b) may, to exercise its assignment, without being bound to carry
out an audit, and unless contrary information is communicated by
another Party, deem:
(i) that the representations made and the information
provided to it by the Borrower for the purpose of this
Agreement are accurate; and
(ii) that no Event of Default or Potential Event of Default
has occurred.
(c) shall deliver to the Banks as soon as possible all information
and documents communicated by the Borrower in respect of this
Agreement;
(d) shall notify to the Banks as soon as possible of any Event of
Default or Potential Event of Default that another Party will
have informed it of or, regarding the non-performance by the
Borrower of an obligation, that it would have ascertained
itself;
(e) will not be bound to disclose information concerning the
Borrower where such disclosure might cause it to incur
liability;
(f) will not have any obligations other than those expressly borne
by it under this Agreement and the Security Documents; and
(g) my carry out the incurrence of the securities created pursuant
to the Security Documents according to the instructions given by
the Majority of the Banks (or all the Banks when this Agreement
or the Security Documents provide therefor) and may exercise all
powers expressly granted to it for this purpose.
57
23.3 The Arranger
The Banks represent and acknowledge that Fortis Bank S.A. has acted as
arranger of the Credit syndication. In this respect, the provisions of
the above paragraphs shall apply mutatis mutandis to the Arranger.
24. Liabilities
24.1 The Arranger
The Arranger shall have no liability:
(a) vis-a-vis the Banks or the Borrower, for the validity of this
Agreement or, vis-a-vis the Banks, for the accuracy of the
representations made by the Borrower and the information
provided by it;
(b) vis-a-vis the Borrower for a possible breach by a Bank in the
performance of its obligations, or vis-a-vis a Bank for a
possible breach by the Borrower or by any other Bank in the
performance of their respective obligations; and
(c) for the cost to the Banks for their participation in the Credit;
each Bank represents, in this respect in favor of the Arranger,
to have carried out its own analysis of the credit and the risks
it incurs in taking part in the Credit, and confirms that the
Arranger will have vis-a-vis it no obligation to follow the
financial position or the prospects of the Borrower.
24.2 The Agent
The Agent shall have no liability vis-a-vis the Banks other that that
resulting from its capacity as agent, as the case may be, appointed
pursuant to Article 23.1 (Powers and authorities). It will incur
liability in this capacity only in case of gross or intentional
misconduct (faute lourde ou intentionnelle).
58
25. Miscellaneous
25.1 Indemnification
The Banks undertake to guarantee the Agent, in proportion to their
respective Portions, against all expenses, losses and liabilities
incurred by the latter in the performance of its duties for any reason
other than its own gross or intentional misconduct.
25.2 Separation of positions
The duty of the Agent being exercised by a department distinct from the
other departments of the financial institution appointed as Agent, the
information gathered by these other departments, confidential to such
departments, will not be deemed known by the Agent for the purpose of
this Agreement solely because such other departments had knowledge
thereof.
25.3 Resignation and revocation
(a) The Agent may resign from its position without cause and at any
time, upon thirty-days prior notice period given to the Banks
and the Borrower.
(b) The Majority of the Banks may, by notification, revoke the power
of the Agent.
(c) In case of resignation or revocation of the Agent, the Majority
of the Banks shall appoint its successor.
(d) In the event that, on the effective date of the resignation or
revocation, a successor shall not have been appointed or shall
not have accepted its appointment, the Agent may itself appoint
its successor, which shall be a credit institution established
in Paris, able to fulfil the duties of the Agent. As long as a
successor of the Agent has not been appointed or has not
accepted its appointment, the Agent will remain in office.
59
CHAPTER 11
ASSIGNMENTS AND TRANSFERS
26. Transfer by the Borrower
The Borrower may not assign its rights or obligations.
27. Transfer by the Banks
27.1 A Bank (a "Former Bank") may, by entering into a Transfer Instrument,
substitute for it another financial institution (a "New Bank"). Such a
substitution, if not for its aggregate Available Undertaking and/or its
Global Participation, must be for an amount of at least 1,000,000 USD or
1,000,000 EUR. Such a substitution shall be previously authorized in
writing by the Borrower. For such purpose, any proposed substitution by
the Former Bank shall be notified by any means to the Borrower. The
Borrower may not refuse to give its consent without legitimate grounds
and, in any event, its consent shall be deemed acquired if it fails to
respond to the notification made by the Former Bank.
27.2 The New Bank shall inform the Borrower and the other Banks, through the
Agent, as soon as possible, of the conclusion of a Transfer Instrument
and its effective date.
27.3 The New Bank shall substitute for the Former Bank in the rights and
obligations of the latter vis-a-vis the Agent and the other Banks by
solely by signature of a Transfer Instrument.
27.4 After signature of a Transfer Instrument:
(a) the Former Bank is released from that day forward, to the extent
provided by the Transfer Instrument, from its obligations
vis-a-vis the Borrower and the other Parties;
(b) the New Bank, which is substituted for it, shall be responsible
for its obligations vis-a-vis the Borrower and the other Parties
and shall benefit from all of its benefits as well as the
burdens appurtenant thereto.
60
27.6 On the effective date of a Transfer, the New Bank shall pay to the Agent
a transfer commission equal to 1,000 EUR.
28. Credit Branch
A Bank may, once or several times, change the branch through which it
takes part in the Credit by notifying the Agent of the details of its
new Credit Branch.
29. Information
A Bank may disclose to a financial institution with which it
contemplates to sign a Transfer Instrument and to a person to whom it
has granted or intends to grant a sub-participation all information it
has concerning the Borrower.
61
CHAPTER 12
MISCELLANEOUS
30. Financial calculations
30.1 Calculation basis
The interest, commissions and other amounts due by the Borrower shall be
calculated based on the precise number of days based upon a year of 360
days; it being specified that any reference period for the calculation
of any amount shall include, for the purpose of the said calculation,
the first day of this period and shall exclude the last.
30.2 Accounts
Each Bank, with respect to its own Global Participation, and the Agent,
with respect to the Loan, shall register in its respective books on
special accounts the amounts in principal, interest or other due by the
Borrower, as well as the paid amounts.
30.3 Evidence
(a) The accounts mentioned in Article 30.2 (Accounts) shall be
deemed accurate, unless otherwise evidenced, with respect to
amounts due by the Borrower.
(b) The certificate by a Bank regarding the amount of a sum
submitted to the Borrower pursuant to Article 10.4 (Other taxes)
or 11.1 (Additional costs) will be deemed accurate, unless
otherwise evidenced, regarding the amount due by the Borrower.
31. Recourse
A Bank will not be deemed to have waived a right due to solely to the
fact that it does not exercise it such right or exercises it only
partially or lately.
62
32. Severability of provisions
The possible nullity of a provision of this Agreement shall not affect
the validation of its other provisions.
33. Communications
33.1 Language
All communication between the Parties with respect to this Agreement as
well as all documents going along with it, shall be in the French
language.
33.2 Terms and conditions
(a) All communication with respect to this Agreement shall be in
writing and sent by courier, registered mail with return receipt
requested or facsimile to the address and/or number of the
addressee Party indicated on the signature pages (or, in the
case of a Bank that acquires this capacity pursuant to a
Transfer Instrument, pursuant to the provisions of the Transfer
Instrument).
(b) A communication shall be deemed received, as the case may be:
(i) on the date appearing on the notice of receipt, in case
of sending by registered mail;
(ii) at the time of sending, in case of sending by facsimile
(however, if the receipt date appearing on the
transmission report does not correspond to a Business
Day (Paris), the receipt date shall be the first
following Business Day (Paris);
(iii) on the date appearing on the receipt, in case of
delivery by courier.
63
34. Modifications
34.1 Principle
(a) The Agent may, subject to the prior written consent of the
Majority of the Banks:
(i) inform the Borrower that the Banks permanently or
temporarily, waive the application of a provision of
this Agreement; or
(ii) agree with the Borrower on an amendment to this
Agreement.
(b) Such amendments or waivers shall be enforceable vis-a-vis all
the Parties.
34.2 Exceptions
(a) The unanimous consent of the Banks shall be required for any
amendment or waiver relating to:
(i) the definition of "Majority of the Banks";
(ii) the increase in the maximum amount of the Credit;
(iii) the interest rate, commissions or amount of any other
payable sum;
(iv) the money of account or payment of this Agreement;
(v) a postponement of the expiry date for any payment by the
Borrower;
(vi) the provisions of Articles 3.1 (Conditions precedent),
3.2 (Condition subsequent), 20 (Equalization of
payments) or this Article 34;
(vii) any provision regarding the consent of all the Banks.
64
(b) The Agent shall not be bound, despite the provisions of Article
23.1 (Power and authorities), to agree with the Borrower on any
amendment:
(i) with respect to Article 22.1 (Fees incurred by the
Arranger or the Agent) or to Chapter 10 (the Agent) or
to this paragraph (b) of Article 34.2; or
(ii) which could result in a modification of the rights of
the Agent or impose additional obligations on it.
(c) A Bank may not, without its consent, be subject to a
modification resulting in the reduction of its portion of any
amount due by the Borrower.
35. Global effective rate
The global effective rate applicable to the Loan may not be calculated,
pursuant to the provisions of Law n(degree)66-1010 of December 28, 1966
(included in Articles L. 313-1 and L. 313-2 of the French Consumer Code)
due, in particular, to the variability of the applicable interest rate.
However, for purposes of Articles L. 313-1 through L. 313-6 of the
French Consumer Code and based on the elements known as of July 28, 2000
and with a margin amounting to 2% for the EURIBOR at three (3) months,
i.e. 4.631% per year, the parties have assessed, for information
purposes, the global effective rate of the Credit, which would amount
(i) to 7.68% per year and the period rate would amount to 1.92% for a
three (3)-month period.
For the future, the parties to this Agreement expressly acknowledge
that, due to the specificity of the provisions of this Agreement and, in
particular, the variability of the Interest Rate and the possibility
proposed to the Borrower to choose the duration of the Interest Period,
it is impossible to precisely determine the global effective rate of the
Credit. However, the Borrower acknowledges to have personally carried
out all such estimations as it deemed necessary to assess the global
cost of the Credit and acknowledges that it has obtained all necessary
information from the Agent and the Banks with respect thereto.
65
CHAPTER 13
GOVERNING LAW - JURISDICTION
36. Governing Law
The Agreement shall be governed by French Law.
37. Jurisdiction
Any dispute relating to this Agreement shall fall within the
jurisdiction of the Commercial Court of Paris. However, this
jurisdiction being provided in the sole interest of the Banks and the
Agent, they may xxx the Borrower before any other court that may have
jurisdiction.
66
ANNEX 1
List and Undertakings of the Banks
Names Undertakings in USD Undertakings in %
Fortis Banque France 14,000,000 40%
Address: 00, xxx xx
Xxxxxxxxxx - 00000 Xxxxx
BNP - Paribas 8,000,000 22.86%
Address: 00, xxxxxxxxx xxx
Xxxxxxxx - 00000 Xxxxx
Societe Generale 8,000,000 22.86%
Address: 00, xxxxxxxxx
Xxxxxxxx - 00000 Xxxxx
Banque Worms 5,000,000 14.28%
Address: 0, xxxxx xxx
Xxxxxx - Xxxx Xxxxxxxx -
00000 Puteaux
67
ANNEX 2
Form of Transfer Instrument
TRANSFER INSTRUMENT
1. The terms used in this Transfer Instrument shall have the respective
meanings given in the multicurrency credit agreement dated August [...],
2000 (the "Agreement") between Genesys S.A. as Borrower, Fortis Bank
S.A. as Arranger, Fortis Bank S.A. as Agent and certain other banks.
2. By this Transfer Instrument, [...] (the "Former Bank") and [...] (the
"New Bank") agree to substitute the New Bank for the Former Bank, up to
[...]% of the rights and obligations of the latter with respect to this
Agreement.
3. The Global Participation and the Available Undertaking of the Former
Bank and the New Bank, before and after this substitution are
consequently:
Global Participation Available Undertaking
-------------------- ---------------------
before after before after
------ ----- ------ -----
substitution substitution substitution substitution
------------ ------------ ------------ ------------
Former Bank [...] [...] [...] [...]
New Bank [...] [...] [...] [...]
4. This Transfer Instrument shall have the legal effects specified in
Article 26.4 of this Agreement, as from the effective date specified
with the signature of the New Bank.
5. The initial Credit Branch of the New Bank, and its administrative
details, shall be the following:
Credit Branch : [...]
Address : [...]
Telephone : [...]
Facsimile : [...]
68
6. The New Bank may give third parties enforceable rights concerning the
assignment by the Former Bank of the rights held with respect to its
Global Participation, by notification of this assignment to the Borrower
pursuant to Article 1690 of the French Civil Code.
7. This Transfer Instrument shall be governed by French Law. Any dispute
regarding it shall fall within the jurisdiction of the Commercial Court
of Paris.
8. This Transfer Instrument shall be governed by French Law. Any dispute
regarding it shall fall within the jurisdiction of the Commercial Court
of Paris.
[The Former Bank] [date]
represented by
-------------------
[The New Bank] [date]
represented by
--------------------
69
ANNEX 3.1
Form of Drawing Notice
Date : [...]
From : Genesys S.A.
To: : Fortis Bank S.A.
Multicurrency Credit Agreement amounting to 35,000,000 USD or the
equivalent in euro date August [...], 2000
1. We refer to the aforementioned Credit Agreement. The terms used in this
Drawing Notice shall have the meaning ascribed to them in Article 1 of
the Credit Agreement.
2. In accordance with Article 3.3 (General conditions of use) of the said
Credit Agreement, we hereby request the availability of an Advance
having the following features:
- Drawing Date: [...]
- Currency: [...]
- Amount: [...]
- Duration of the first Interest Period: [...]
- Bank account to be credited: [...]
3. We hereby confirm the accuracy to-date of all the representations
expressed in Article 13 (Representations of the Borrower) of the Credit
Agreement.
4. This Drawing Notice shall be irrevocable.
GENESYS S.A.
By:
--------------------------
Name:
70
ANNEX 3.2
Notification of Change of Currency
Date : [...]
From : [...]
To: : [...]
Multicurrency Credit Agreement amounting to 35,000,000 USD or the
equivalent in euro date August [...], 2000
1. We refer to the aforementioned Credit Agreement. The terms used in this
Notification of Change of Currency shall have the meaning ascribed to
them in Article 1 of the Credit Agreement.
2. We refer to the Advance amounting to [...] which Interest Period end on
[...].
3. We request you to denominate this Advance in [...] as from the next
Interest Period.
4. We hereby confirm that this change of currency will trigger no situation
constituting an Event of Default or a Potential Event of Default and we
reiterate for the purpose hereof the representations appearing in
Article 13 of this Agreement.
5. Any amount paid with respect to a change of currency shall be credited
on the account n(degree)[...].
6. This Notification of Change of Currency shall be irrevocable.
GENESYS S.A.
By:
--------------------------
Name:
71
ANNEX 4
Conditions Precedent
1. an original extrait K-bis relating to the Borrower dated no more than
one month prior;
2. a certified true copy by Xx. Xxxxxxxx Xxxxxx (or any empowered person)
of the by-laws of the Borrower, up-dated on the signature date of this
Agreement;
3. a certified true copy by Xx. Xxxxxxxx Xxxxxx (or any empowered person)
of the deliberation of the board of directors authorizing the Borrower
to raise the bank borrowings;
4. a legal opinion from Xxxxxxxx Chance, counsel to the Arranger in form
satisfactory to the Agent;
5. a legal opinion from the in-house counsel of the Borrower in form
satisfactory to the Agent;
6. the specimen signature of the persons that may duly sign any Drawing
Notice, any Notification of Change of Currency or any other
communication on behalf of the Borrower in the context of this
Agreement;
7. a copy of this Agreement and the Security Documents duly signed by the
Borrower;
8. two legal opinions from Xxxxxxxx Change, counsel to the Arranger
relating to each of the Security Documents in form satisfactory to the
Agent.
72
ANNEX 5
Pledge of the interest of Genesys Conferencing Inc
73
