Exhibit 10(a)
TRANSLATION FOR INFORMATION PURPOSES ONLY
BETWEEN:
- BANQUE NATIONALE DE PARIS or BNP, a "societe anonyme" with a
share capital of FF 3,536,972,150, whose registered office is at
00 Xxxxxxxxx xxx Xxxxxxxx, 00000 XXXXX, registered with the
PARIS Registry of Commerce and Companies under number B 662 042
449,
represented by:
- Xx Xxxxx XXXXXXXXX, Manager
- Mr Alain CHANTEREAU, Assistant Manager
(the "Bank", if not referred to by name)
OF THE ONE PART,
AND:
- XXXXX-XXXXXXX XXXXX INC, a limited liability company with a
share capital of USD 438,298,771, whose registered office is at
000 Xxxxxx Xxxx, XXXXXXXXXXXX, XXXXXXXXXXXX 00000, XXXXXX XXXXXX
OF AMERICA,
represented by:
- Xx Xxxxxxx XXXXXXXX
Corporate Senior Vice President, Chief Financial Officer
(the "Borrower", if not referred to by name)
OF THE OTHER PART,
IT IS AGREED AS FOLLOWS:
ARTICLE I - AMOUNT AND PURPOSE OF LOAN
The Bank agrees to grant the Borrower a loan facility (the
"Loan") of a maximum amount of USD 200,000,000 (TWO HUNDRED
MILLION US DOLLARS) or its equivalent in FRF, DEM or GBP.
The Loan is entered into in order to reinforce the Borrower's
financial resources.
Subject to the prior written agreement of XXXXX-XXXXXXX XXXXX
INC, the following companies, being subsidiaries owned as to
more than 50% by XXXXX-XXXXXXX XXXXX INC:
- XXXXX-XXXXXXX XXXXX X.X.
- XXXXX-XXXXXXX XXXXX LTD
- XXXXX-XXXXXXX XXXXX GmbH
may make drawings under the Loan subject to the guarantee by
XXXXX-XXXXXXX XXXXX INC in the form attached as schedule I
hereto.
Subject to the prior written agreement of XXXXX-XXXXXXX XXXXX
INC, XXXXX-XXXXXXX S.A. may make drawings under the Loan.
XXXXX-XXXXXXX S.A., XXXXX-XXXXXXX XXXXX X.X., XXXXX-XXXXXXX
XXXXX LTD and XXXXX-XXXXXXX XXXXX GmbH shall, prior to the first
drawing that they may make, enter into an undertaking directly
with the Bank on the terms of schedule II to this loan
agreement. The terms and conditions agreed with XXXXX-XXXXXXX
XXXXX INC shall apply to these companies.
XXXXX-XXXXXXX XXXXX INC, XXXXX-XXXXXXX XXXXX X.X., XXXXX-XXXXXXX
XXXXX LTD, XXXXX-XXXXXXX XXXXX GmbH and XXXXX-XXXXXXX S.A. shall
hereafter be referred to as the "Borrowing Companies".
ARTICLE II - DURATION OF THE LOAN
The Loan is granted for a period of four years from 15th June,
1993 to 15th June, 1997.
ARTICLE III - REPAYMENT
Except in the case of prepayment under Article VIII ("PREPAYMENT
FACILITY"), the Loan shall be repaid in one single instalment on
15th June, 1997.
ARTICLE IV - METHODS OF DRAWING
Drawings may be made under this loan on one business day's
notice in respect of drawings in FRP and two business days'
notice in respect of drawings in USD, GBP or DEM, by the
debiting of a special account constituting a simple accounting
record, which shall not have the legal consequences of a running
account and which shall be opened for these purposes by each of
the Borrowing Companies in the books of the BNP LA DEFENSE
Branch. Drawings shall have a duration of one, two, three or six
months. However, drawings in French francs may have a minimum
duration of fifteen days.
XXXXX-XXXXXXX XXXXX INC shall also be able to make drawings in
USD without prior notice through BNP NEW YORK.
In respect of drawings in French francs, the Borrowing Companies
shall draw one or more notes in favour of the Bank payable at
BANQUE NATIONALE DE PARIS, which shall include a provision that
the bearer of the note is not required to protest the notes at
their maturity.
The amount of drawings in currencies other than US Dollars shall
be calculated on the basis of the rate of exchange of the US
Dollar against the relevant currency, on the PARIS Foreign
Exchange Market, two business days before the drawing date (one
business day in the case of drawings in French francs).
"Business day" means any complete day on which the banks are
open:
- in respect of drawings in French francs, in PARIS;
- in respect of drawings in euro-currencies, in LONDON and the
principal national financial centre of the currency in which the
drawing is made.
After having drawn on the Loan and reimbursed it in one or more
instalments, in whole or in part, the Borrowing Companies may
request new drawings, subject to the limits relating to amount
and duration set out herein.
The drawings as well as subsequent renewals and prepayments, if
any, shall be made in accordance with the provisions of the
Exchange Control Regulations ("Reglementations des Changes")
that may apply to such transactions.
ARTICLE V - NON-AVAILABILITY OF CURRENCY
If the Bank observes, at the time of either any drawing or a new
interest period, that the currency is not available on the PARIS
inter-bank market, it shall notify the Borrowing Companies
thereof as soon as possible.
In such a situation, the parties shall consult in order to reach
an agreement on the replacement currency or on a possible
reversion to French francs. Failing agreement between the
parties, the drawing or the renewal shall not take place.
Existing drawings in the non-available currency shall then be
repaid in French francs by the drawing company or companies as
regards principal, interest, costs and expenses (if any)
incurred by the Bank by reason of the non-availability of the
currency. The Bank agrees to supply evidence of these costs,
incidental expenses and possible costs on demand by the
Borrowing Companies.
The amount in FRF to be repaid shall be determined according to
the most recent quotation of the rate for the currency in which
the loan was then denominated.
ARTICLE VI - CONTROL OF THE EQUIVALENT AMOUNT IN USD OF THE
OUTSTANDING AMOUNT
The total amount of drawings shall not exceed the equivalent of
USD 200,000,000 (TWO HUNDRED MILLION US DOLLARS) (the "Original
Amount") reduced by repayments that shall already have been
made. The US dollar equivalent of the drawings shall be verified
at the time of each drawing or at the beginning of each interest
period at the exchange rate in force on the day of the
verification.
If the US dollar equivalent is larger by 5% than the Original
Amount reduced by repayments already made, the Bank shall only
renew the outstanding amount for a sum in foreign currencies
corresponding to the equivalent amount of the Original Amount
expressed in USD reduced by repayments already made, and the
drawing company or companies shall repay the difference thus
calculated.
However, if this equivalent is not larger by 5% than the
Original Amount expressed in USD reduced by repayments already
made, the Bank shall renew the outstanding amount in foreign
currencies at its previous level.
ARTICLE VII - CONDITIONS
- COMMITMENT FEE:
0.20% per annum payable half-yearly in advance on the authorised
amount irrespective of any drawings.
This fee shall, in any event, be borne by XXXXX-XXXXXXX XXXXX
INC, which shall secure the division thereof between the
Borrowing Companies. It shall be calculated on the basis of a
360-day year and shall be payable in US dollars.
- INTEREST:
- in respect of drawings or renewals of drawings in FRF:
Interest shall be calculated according to the precise number
of days in the relevant period as compared with 360 days at the
PIBOR rate (PARIS INTERBANK OFFERED RATE) for the selected
period of drawing or renewal or the next longest period shown at
11.00 a.m. on the Business Day preceding the date of drawing or
renewal on TELERATE page 20041 or any other page substituted
therefor, increased by 0.25% annum.
The above interest shall be paid at the end of each interest
period.
- in respect of drawings or renewals of drawings in foreign
currencies:
Interest shall be calculated according to the precise number
of days in the relevant period as compared with 360 days for all
currencies, with the exception of GBP, interest in respect of
which shall be calculated as compared with 365 days.
Interest shall be determined according to the LIBOR rate
(LONDON INTERBANK OFFERED RATE) for the relevant currency for
the selected period of drawing or renewal for sums equivalent to
those advanced, calculated under the aegis of the BRITISH
BANKERS ASSOCIATION and shown on TELERATE - Page 3750 or any
other page substituted therefor at 11.00 a.m. (LONDON time), two
business days before the drawing date or the beginning of a new
interest period, increased by 0.25% per annum.
In the case of drawings made by XXXXX-XXXXXXX XXXXX INC in USD
without prior notice through BNP NEW YORK, interest shall be
determined according to the cost of funds of BNP NEW YORK for
the selected drawing or renewal period, increased by 0.25% per
annum.
The above interest shall be payable at the end of each
interest period.
The Bank shall notify the Borrowing Company of the rate of
interest applicable to the relevant interest period. This rate
shall be revised at the end of each interest period.
The special account referred to above in Article IV "METHODS OF
DRAWING" shall be exempt from the payment of any account fee and
any fee on the largest overdraft outstanding thereon. Interest
shall automatically be debited to the current account maintained
on the books of the BNP LA DEFENSE Branch by each of the
Borrowing Companies.
If the determination of an interest rate has become impossible
by reason of the occurrence of certain events, the Bank shall
notify the Borrowing Companies of such fact, and the parties
shall enter into negotiations. If no agreement is reached with a
view to a solution within 30 days of this notification, the
Borrowing Companies shall repay the Loan as to principal
interest, costs, incidental expenses and costs (if any) provided
that the applicable interest rate shall be the Bank's own cost
of financing, increased by 0.25% per annum.
Any sum not paid on its contractual or accelerated maturity date
shall automatically bear interest for the period from and
including such maturity date until but excluding the day of full
payment, at the rate applied during the preceding drawing or
renewal period, increased by 1% per annum.
Interest outstanding for a whole year shall be capitalised in
accordance with Article 1154 of the Civil Code.
These provisions do not constitute consent to late payment.
For the purposes of article 4 of the Law of 28th December, 1966
relating to notice of global effective rates, it is hereby
provided that, taking account of the three-month LIBOR rate for
US dollars on 9th June, 1993 and a commitment fee payable half-
yearly in advance, a full drawing of this loan on 10th June,
1993 would have resulted in a rate of 3.83%.
ARTICLE VIII - PREPAYMENT FACILITY
Each of the Borrowing Companies may cancel the Loan or prepay
it, in whole or in part, at the end of any current drawing
period, provided that it gives the Bank at least 30 (thirty)
days' notice by registered letter with postal acknowledgment of
receipt of its irrevocable intention to terminate or to repay
the loan, in whole or in part.
Any termination or prepayment shall be final for the relevant
Borrowing Company.
The commitment fee shall cease to be due on that part of the
loan in respect of which the Borrower shall have given such
notice as from the end of the half-yearly commitment fee period
during which the cancellation shall have taken effect.
ARTICLE IX - ACCELERATION OF MATURITY
A/ The Bank reserves the right to declare the acceleration of
all the sums due from any of the Borrowing Companies as regards
principal, interest, default interest, fees, costs and expenses
and no further drawing may be made by such Company in the
following circumstances:
1) if XXXXX-XXXXXXX XXXXX INC reduces its direct or indirect
shareholding in the share capital of such Company such that it
becomes a subsidiary that is less than 50% owned (this clause
shall not apply to XXXXX-XXXXXXX S.A.),
2) if payment is not made by such Company of any sum due under
the Loan on its due date, and such default is not made good
within fifteen days of receipt of a notice from the Bank to the
Company by registered letter,
3) if payments are not made by such Company on their due dates
of sums due to any party under other borrowings, and such
default in payment has caused the acceleration of such
borrowings. Acceleration shall not be declared if the debt is
validly disputed or if the sums involved are of a nominal amount
of less than USD 10m (USD 30m so far as XXXXX-XXXXXXX S.A. is
concerned), or its equivalent,
4) if such Company does not comply with any of its other
obligations undertaken under the Loan or if a written warranty
made by such Company or any undertaking, certificate or document
signed by it or supplied under the Loan by any person is shown
to be inaccurate, to the extent that such inaccuracy has a
material impact on the position of such Company,
5) if the BANK OF FRANCE ("BANQUE DE FRANCE") ceases to
recognise such Company's signature,
6) if such company is dissolved, subject to a voluntary
winding-up, or ceases to trade or to make payments,
7) in the event of administration or judicial liquidation, or,
generally, any collective compromise proceedings relating to the
liabilities of such Company.
B\ The Bank reserves the right to declare the acceleration of
all the sums due from all the Borrowing Companies (except for
XXXXX-XXXXXXX S.A.) as regards principal, interest, default
interest, fees, costs and expenses, and no other drawing may be
made by any Borrowing Company (other than XXXXX-XXXXXXX S.A.) in
the following circumstances:
1) failure to make payment within fifteen days following
receipt of a request for payment sent by the Bank to XXXXX-
XXXXXXX XXXXX INC as guarantor, of the sums not settled by any
one of XXXXX-XXXXXXX XXXXX X.X., XXXXX-XXXXXXX XXXXX LTD and
XXXXX-XXXXXXX XXXXX GmbH,
2) if payment is not made by XXXXX-XXXXXXX XXXXX INC of any
sum due under the Loan on its due date, and such default is not
made good within fifteen days after receipt of a notice by the
Bank to such company by registered letter,
3) if payment is not made by XXXXX-XXXXXXX XXXXX INC on their
due dates of sums due to any party under other borrowings, and
such default in payment has caused the acceleration of such
borrowings. Acceleration shall not be declared if the debt is
validly disputed or if the sums involved are of a nominal amount
of less than USD 10m or its equivalent.
4) If XXXXX-XXXXXXX XXXXX INC does not comply with any of its
other obligations undertaken under the Loan or if a written
warranty made by such company or any undertaking, certificate or
document signed by it or supplied under the Loan by any person
is shown to be inaccurate, to the extent that such inaccuracy
has a material impact on the position of XXXXX-XXXXXXX XXXXX
INC,
5) if the BANK OF FRANCE ("BANQUE DE FRANCE") ceases to
recognise XXXXX-XXXXXXX XXXXX INC's signature,
6) if XXXXX-XXXXXXX XXXXX INC is dissolved, subject to a
voluntary winding-up, or ceases to trade or to make payments,
7) in the event of administration or judicial liquidation, or,
generally, any collective compromise proceedings relating to the
liabilities of XXXXX-XXXXXXX XXXXX INC.
Any sums that shall have become payable under paragraphs A/ and
B/ shall bear interest at the rate applied during the current
drawing or renewal period. This rate shall be increased by 1% in
the event that the repayment of the sums does not take place
within eight days as from the due date; this provision shall not
constitute consent to late payment.
Any interest payable that is outstanding for a whole year shall
be capitalised in accordance with Article 1154 of the Civil
Code.
ARTICLE X - UNDERTAKINGS OF THE BORROWING COMPANIES
So long as any one of the Borrowing Companies shall be capable
of being a debtor hereunder, it shall:
- provide to the Bank as soon as possible and at the latest
within 90 days from the Ordinary General Meeting approving its
accounts, two copies of its annual balance sheets, profit and
loss accounts and documents attached thereto (consolidated
accounts so far as XXXXX-XXXXXXX S.A. and XXXXX-XXXXXXX XXXXX
INC are concerned),
- inform the Bank, as soon as possible, of any fact that may be
capable of affecting the size or value of its assets to a
material extent,
- keep the Bank informed of any changes to its bye-laws that may
be capable of affecting this loan by providing the new bye-laws
within one month from the resolution of shareholders approving
this change,
- immediately inform the Bank of changes to the powers of the
persons authorised to act on its behalf,
- undertake not to grant or allow to exist as security for any
future borrowings in an amount greater than 30 million US
dollars or as security for the guarantee of such a debt, any
mortgage, charge, pledge or any other right whatsoever over the
whole or any part of its assets or income, present or future,
unless the repayment or payment of all sums that may be due
under this Loan enjoys the same priority as such security, with
the exception of any security granted:
- on an asset acquired after the date of signature of this
Agreement for the sole purpose of financing such acquisition and
to secure payment of sums not exceeding in principal the cost of
such acquisition,
- to CREDIT NATIONAL, the EUROPEAN INVESTMENT BANK, the FONDS
INDUSTRIEL DE MODERNISATION, the FONDS DE DEVELOPPEMENT
ECONOMIQUE ET SOCIAL, or any other financial institution
controlled by the French State or the European Economic
Community and which, by law or its common practice, requires
such security.
Further, so long as any of the Borrowing Companies shall be
capable of being a debtor hereunder, XXXXX-XXXXXXX XXXXX INC
shall give prior notice to the Bank of any planned reduction in
its direct or indirect shareholding in the share capital of the
Borrowing Companies (other than XXXXX-XXXXXXX S.A.) which shall
result in reducing its shareholding such that any such company
shall become a subsidiary that is less than 50% owned.
ARTICLE XI - CHANGES OF CIRCUMSTANCE
The terms of this Agreement should be read as requiring full
payment to the Bank of all amounts falling due thereunder.
If interest or fees payable under the Loan become liable to any
duty, levy or tax whatsoever to which they are not currently
subject, the Borrower or any one of the Borrowing Companies
undertakes to pay the amount thereof, if evidence thereof is
given by the Bank, at the mere request of the latter, such that
the Bank shall bear no part thereof. Accordingly, the possible
lifting of or decrease in such new charges shall also be passed
on to the Borrowing Companies.
The occurrence of new circumstances of a monetary, financial,
banking or fiscal nature resulting from legal or regulatory
provisions or directives, recommendations or interpretations by
an official authority or a professional organisation that
results in the Bank incurring a new obligation leading to an
increased cost or the loss of a gain, linked directly or
indirectly to the transactions under this Agreement such as, for
example, the obligatory setting aside of reserves or making
deposits, a quantitative regulation of the loan, the
introduction or increase of liquidity ratios, own funds or other
matters relating to the whole of the assets or liabilities
(including off balance sheet liabilities), shall result in a
renegotiation of the terms.
In the event of disagreement at the end of a thirty day
negotiation period, commencing on the date of the despatch by
the Bank of a registered letter informing the Borrower of the
occurrence of an event bringing this clause into effect, each
party shall be entitled to repudiate the facility forthwith.
In such event, the Borrowing Companies shall bear the
supplementary cost and/or the loss of a gain referred to in the
above paragraph incurred by the Bank during such thirty day
period. XXXXX-XXXXXXX XXXXX INC shall secure the division
thereof between the Borrowing Companies.
ARTICLE XII - APPLICABLE LAW
The provisions of this confirmed Credit are governed by French
law, and the Courts of PARIS alone shall be competent to hear
and resolve any litigation, dispute or difficulty that may occur
between the parties in relation to the interpretation and
carrying out of the provisions of this Agreement.
ARTICLE XIII - MISCELLANEOUS
The Borrower shall bear all costs, levies and taxes, fees,
interest or other sums payable by reference to this Agreement or
resulting therefrom or consequent thereupon, and shall secure
the division thereof between the Borrowing Companies.
ARTICLE XIV - ELECTION OF RESIDENCE
Any notice concerning the confirmed Credit shall be sent:
- to the Borrower at the Registered Office of XXXXX-XXXXXXX
XXXXX X.X., 00 Xxxxxx Xxxxxxx Xxxx, 00000 ANTONY CEDEX, where an
election in respect of residence is made,
- to the Bank at its LA DEFENSE Branch, where an election in
respect of residence is made.
Signed in PARIS, on 15th June 1993
in two original copies
BANQUE NATIONALE DE XXXXX XXXXX-XXXXXXX XXXXX INC
/s/ Xxxxx /s/ Alain /s/ Xxxxxxx
XXXXXXXXX CHANTEREAU XXXXXXXX
Xxxxx Alain Xxxxxxx
XXXXXXXXX CHANTEREAU XXXXXXXX
Exhibit 10(b)
FIRST SUPPLEMENTAL AGREEMENT TO THE AGREEMENT
OF 15TH JUNE, 1993
BETWEEN:
BANQUE NATIONALE DE PARIS, a "societe anonyme" with a share
capital of FRF 4,751,153,975, whose registered office is at 00
Xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered with the Paris
Registry of Commerce and Companies under number B 662 042 449,
represented by:
- Xx. Xxxx-Xxxxxx XXXXX, Manager of the Department
- Mr. Alain CHANTEREAU, Assistant Manager
(the "Bank", if not referred to by name)
OF THE FIRST PART,
AND:
XXXXX-XXXXXXX XXXXX INC, a "societe anonyme" with a share
capital of USD, whose registered office is at 000 Xxxxxx Xxxx,
XXXXXXXXXXXX, XXXXXXXXXXXX 00000, XXXXXX XXXXXX OF AMERICA,
represented by: Xx. Xxxxxxxx XXXXXX, Corporate Treasurer
(the "Borrower", if not referred to by name)
OF THE SECOND PART,
On 15th June, 1993 XXXXX-XXXXXXX XXXXX INC and the Bank entered
into an Agreement (the "Agreement"), making available to XXXXX-
XXXXXXX XXXXX INC a loan (the "Loan"), in a maximum amount of
USD 200,000,000, under which drawings may be made in FRF, USD,
GBP and DEM. XXXXX-XXXXXXX XXXXX X.X., XXXXX-XXXXXXX XXXXX
LIMITED and XXXXX-XXXXXXX XXXXX GmbH may also make drawings
under the Loan, subject to certain conditions; XXXXX-XXXXXXX
XXXXX INC has guaranteed the indebtedness of such companies
under a guarantee signed on 15th June, 1993. XXXXX-XXXXXXX S.A.
may also make drawings thereunder.
At the request of XXXXX-XXXXXXX XXXXX INC, BNP agrees that the
amount of the loan should be increased, its duration be
extended, and to amend the rate of the margin contained in the
interest rates and the commitment fee.
At the request of XXXXX-XXXXXXX XXXXX INC, BNP also agrees that,
subject to certain conditions, the subsidiaries of XXXXX-XXXXXXX
XXXXX INC that are more than 50% owned by the company, other
than those already referred to in the Agreement, may make
drawings under the Loan.
WHEREAS IT IS AGREED AS FOLLOWS:
ARTICLE I
1. The maximum amount of the loan defined in article I of the
Agreement is increased to a maximum amount of USD 250,000,000
(TWO HUNDRED AND FIFTY MILLION US DOLLARS) or its equivalent in
any other currency in which drawings may be made under the terms
of the Agreement.
2. As a consequence, the sum referred to in article VI of the
Agreement is replaced by USD 250,000,000 (TWO HUNDRED AND FIFTY
MILLION US DOLLARS).
ARTICLE II
1. The duration of the loan as defined in article II of the
Agreement is extended until 13.04.2000.
2. As a consequence, the date referred to in article III of
the Agreement is replaced by the date 13.04.2000.
ARTICLE III
The margin of 0.25% referred in article VII - "CONDITIONS -
Interest" is decreased to 0.175%, provided that this reduction
shall come into effect at the end of each interest period
current at the date of entry into effect of this supplemental
agreement.
ARTICLE IV
The commitment fee of 0.20% referred to in article VII of the
Agreement is reduced to 0.125% per annum as from 15th June,
1995.
ARTICLE V
In the event that XXXXX-XXXXXXX S.A. reduces its direct or
indirect shareholding in the share capital of XXXXX-XXXXXXX
XXXXX INC to a level less than 51%, the terms set out in
articles III and IV of this supplemental agreement shall be
renegotiated at the request of BANQUE NATIONALE DE PARIS within
a maximum margin of 0.075%.
ARTICLE VI
Drawings under the Loan by XXXXX-XXXXXXX XXXXX X.X., XXXXX-
XXXXXXX XXXXX LTD and XXXXX-XXXXXXX XXXXX GmbH shall not exceed
a maximum principal amount of USD 200,000,000 (TWO HUNDRED
MILLION US DOLLARS) or its equivalent in one of the permitted
currencies under the Agreement, and shall be repaid by 15th
June, 1997, until the Guarantee of 15th June, 1993, attached as
schedule I to the Agreement, has been amended by a supplemental
agreement on the terms of schedule I hereto.
ARTICLE VII
Drawings may be made under the Loan by the subsidiaries of XXXXX-
XXXXXXX XXXXX INC that are more than 50% owned by that company,
in addition to those already set out in Article I of the
Agreement, subject to the following conditions:
- the prior written agreement of XXXXX-XXXXXXX XXXXX INC
- the prior written agreement of the Bank
- the prior receipt by the Bank of a letter from the relevant
subsidiary under which it enters into a direct undertaking to
the Bank, in the form of Schedule II to the Agreement. The terms
and conditions agreed with XXXXX-XXXXXXX XXXXX INC shall apply
to the relevant subsidiary.
- the prior grant of a guarantee by XXXXX-XXXXXXX XXXXX INC to
BANQUE NATIONALE DE PARIS in respect of the obligations of the
relevant subsidiary relating to the Loan, in the form of the
draft which shall be sent by the Bank to XXXXX-XXXXXXX XXXXX INC
at that time. This guarantee shall be duly authorised by the
Board of Directors of XXXXX-XXXXXXX XXXXX INC.
- the prior signature of a supplement to the Agreement
authorising the relevant subsidiary to make drawings under the
Loan.
ARTICLE VIII
On the basis of a drawing made on 12.04.1995 for a period of 3
months, the complete drawing of this loan in French francs would
show an effective global rate of 8.12% per annum, calculated on
the proportional basis.
ARTICLE IX
All the provisions of the Agreement that shall not have been
amended by this Supplemental Agreement shall remain in full
force and effect.
ARTICLE X
This Supplemental Agreement shall come into force once the
agreement of the subsidiaries of XXXXX-XXXXXXX XXXXX INC with
the Bank by way of acceptance of the commitments set out in
schedule II to the Agreement has been obtained.
Signed in PARIS, on 13th April 1995
in two original copies
BANQUE NATIONALE DE XXXXX XXXXX-XXXXXXX XXXXX INC
/s/ Xxxx-Xxxxxx XXXXX /s/ Alain CHANTEREAU /s/ Xxxxxxxx Xxxxxx
Xxxx-Xxxxxx XXXXX Xxxxx CHANTEREAU Xxxxxxxx Xxxxxx
Exhibit 10(c)
ENGLISH TRANSLATION FOR INFORMATION ONLY
AMENDMENT NO. 2 TO THE AGREEMENT
OF 15TH JUNE, 1993
BETWEEN THE UNDERSIGNED:
BANQUE NATIONALE DE PARIS, whose registered office is at 00,
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, represented by Messrs
Xxxxxxxx Xxxxxx and Xxxx-Xxxxxx Xxxxx, duly authorised
hereinafter referred to as the "Bank"
OF THE ONE PART
AND
XXXXX-XXXXXXX XXXXX INC. whose registered office is at
Collegeville, 000 Xxxxxx Xxxx, Xxxxxxxxxxxx (U.S.A.),
represented by Xx. Xxxxxxxx Xxxxxx
hereinafter referred to as the "Client"
OF THE OTHER PART
WHEREAS:
By an agreement dated 15th June, 1993 the Bank granted to the
Client and certain of its subsidiaries a credit facility
(hereinafter referred to as the "Credit"). The said agreement
was amended by Amendment no. 1 dated 13th April, 1995. The said
agreement as so amended is hereinafter referred to as the
"Agreement". At the Client's request, the Bank has agreed to
amend the Agreement anew in accordance with the following
provisions. Expressions defined in the Agreement have the same
meaning as in this amendment (hereinafter referred to as
"Amendment no. 2").
NOW IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1 SPECIAL PERIOD
During the period of seven months (hereinafter referred to as
the "Special Period") which will commence upon delivery by the
Client to the Bank (including by fax) of a certified copy of an
extract of the minutes of a meeting of the Board of Directors of
the Client ratifying the Amendment no. 2, such copy extract to
be delivered to the Bank in any event not later than 11th
September, 1995, the following provisions shall be deemed to be
contained in the Agreement, any contrary provision being
inapplicable until the expiry of the Special Period.
(A) BORROWER
Only Xxxxx-Xxxxxxx Xxxxx Inc. shall be entitled to use the
Credit.
(B) AMOUNT OF THE CREDIT
The amount of the Credit referred to, in particular, in
Clauses I and VI of the Agreement, is increased during the
Special Period to 1,700,000,000 United States dollars or
the equivalent of such amount in Deutsche Marks, French
Francs or Pounds Sterling.
(C) PURPOSE OF THE CREDIT
The exclusive purpose of the Credit shall be the financing
or refinancing in whole or in part of (i) the acquisition
price of a group of companies whose dominant activity is
similar or complementary to that of the Client and all or
some of whose holding company's share capital is listed,
(ii) the indebtedness (including the preferred shares
currently issued by the Client) of the Client or any of its
subsidiaries, (iii) the expenses associated with such
acquisition and (iv) any procedures related to buying out
minorities.
(D) TERMS
The financial terms of the Credit shall remain unchanged
except, during the Special Period, firstly, in respect of
the amount by reference to which they are to be taxed and,
secondly, in the following respects:-
(i)the Bank will receive from the Client a flat fee of
USD 150,000 in respect of the preparation and costs
incurred in respect of the Amendment no. 2, payable on
the first day of the Special Period;
(ii) the commitment commission provided for in the
Agreement shall be payable monthly in advance.
By way of illustration, by reason of the temporary increase
in the amount of the credit and on the basis of a maximum
drawing on 4th August, 1995 in FRF for 3 months, the global
effective rate calculated on the proportional basis is
6.33% per annum.
(E) DURATION OF DRAWINGS
The Credit may be used subject to 2 business days, in the
case of FRF, (prior to 11 a.m.) and 3 business days, in the
case of USD, DEM or GBP, notice (prior to 11 a.m.) by way
of drawings or renewals of drawings denominated in USD,
FRF, DEM or GBP with a minimum duration of 7 days and a
maximum duration equal to the remainder of the Special
Period. The drawing date means the date on which funds are
made available.
(F) INTEREST
As regards any drawing period which is not an integral
multiple of 1 month, other than 7 day USD drawings or
renewals, the applicable rate shall be the sum of (i) the
Bank's offered rate in Paris for the relevant duration and
currency, on the preceding business day, in the case of
FRF, and two business days prior thereto, in the case of
foreign currencies and (ii) a margin of 0.175% per annum.
In the case of 7 day USD drawings or renewals, the
reference rate shall be determined on the basis of the
average of the rates published by NatWest, Bank of Tokyo
and Barclays for 1 week on Xxxxxx LIBOR page at 11 A.M.
(London time) 2 business days prior to the drawing date,
plus a margin of 0.175% per annum.
(G) EVENTS OF DEFAULT AND UNDERTAKINGS
Clause IX of the Agreement shall not apply during the
Special Period. In addition, failure by the Client to
comply with its obligations under Clause X of the Agreement
shall not be the subject of any sanction, claim or
procedure whatsoever by the Bank.
(H) CHANGE OF CIRCUMSTANCES
In the event of any of the circumstances described in the
third paragraph of Clause XI of the Agreement arising
during the Special Period, the Client shall be entitled to
require the Credit to be maintained and the Bank shall not
be entitled to repudiate it, provided that all costs and
expenses suffered by the Bank as a result thereof shall be
borne by the Client.
CLAUSE 2 OTHER PROVISIONS OF THE AGREEMENT
The provisions of the Agreement which are not modified by the
above provisions shall remain in full force and effect.
CLAUSE 3 EXPIRY OF THE SPECIAL PERIOD
With effect from the expiry of the Special Period, the initial
provisions of the Agreement shall again become applicable as
they subsisted prior to modification by Amendment no. 2.
CLAUSE 4 APPLICABLE LAW
Clause XII of the Agreement also applies to the Amendment no. 2.
Made in Paris (France)
on 7th August, 1995
/s/ X. Xxxxxx /s/ X.X. Xxxxx /s/ X. Xxxxxx
_______________________________ _________________________
X. Xxxxxx X.X. Xxxxx X. Xxxxxx
Banque Nationale de Xxxxx Xxxxx-Xxxxxxx Xxxxx Inc.
Exhibit 10(d)
XXXXX-XXXXXXX
XXXXX INC.
LOAN FACILITY AGREEMENT
dated 7th August, 1995
SOCIETE GENERALE
XXXXXXXXX AND MAY
000, XXXXXX XXXXXX
00000 XXXXX
THIS AGREEMENT IS MADE THE 7TH DAY OF AUGUST 1995
BETWEEN
SOCIETE GENERALE, a societe anonyme with a share capital of
FRF 2,498,779,170, whose registered office is at 00, xxxxxxxxx
Xxxxxxxxx, 00000 Xxxxx, represented by Xx. Xxxxxx XXXXXXX
(hereinafter referred to as the "Bank")
OF THE ONE PART
AND
XXXXX-XXXXXXX XXXXX INC., a company with a share capital of
USD 429 million whose registered office is at Collegeville, 000
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxx Xxxxxx of America, represented
by Xx. Xxxxxxxx Xxxxxx, Corporate Treasurer,
(hereinafter referred to as the "Client")
OF THE OTHER PART
NOW IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1 - DEFINITIONS
The following definitions shall have the following respective
meanings, unless the context other requires:-
"Available Amount" means, on any date, the amount of the
Facility less the aggregate amount of the Drawings outstanding.
"Business Day" means a whole day not being a Saturday on which
the interbank market is open or banks are open (i) in Paris, in
the case of French Franc Drawings and (ii) in London, Paris and
the principal financial centre of the currency of the Drawing,
in the case of any other Drawing.
"DEM" means Deutsche Marks.
"Drawing" means a Drawing made under the Facility or, as the
case may be, the amount thereof for the time being outstanding.
"Facility" means the unconditional, irrevocable, confirmed
revolving facility made available by the Bank to the Client the
maximum amount whereof is stated in Clause 3.
"FRF" means French Francs.
"GBP" means Pounds Sterling.
"Reference Banks" means (i) in the case of DEM, Bayerische
Landesbank, Commerzbank, Deutsche Bank and Dresdner Bank, (ii)
in the case of FRF, Caisse Centrale des Banques Populaires,
Caisse des Depots et Consignations, Caisse Nationale du Credit
Agricole and Credit Commercial de France, (iii) in the case of
GBP, Barclays Bank, Lloyds Bank, Midland Bank and National
Westminster Bank and (iv) in the case of USD, Chase Manhattan
Bank, Chemical Bank, Citibank and X.X. Xxxxxx.
"TMP" means the average rate recorded in day to day transactions
between banks on the French inter-bank market and weighted by
volume, as published by the Banque de France and currently
available on Telerate page 3205.
"USD" means United States Dollars.
CLAUSE 2 - PURPOSE
The object of the Facility shall be the financing or refinancing
in whole or in part of (i) the acquisition price of a group of
companies whose dominant activity is similar or complementary to
that of the Client and all or some of whose holding company's
share capital is listed, (ii) the indebtedness (including share
capital which may be repurchased or redeemed) of the Client or
any of its subsidiaries, (iii) the expenses associated with such
acquisition and (iv) any procedures related to buying out
minorities.
CLAUSE 3 - AMOUNT AND DURATION OF THE FACILITY
The Bank hereby grants to the Client an unconditional,
irrevocable, confirmed revolving loan facility in the maximum
amount of 1,100,000,000 United States Dollars or its equivalent
in Deutsche Marks, French Francs and Pounds Sterling.
Drawings under the Facility may be made during the period of
seven months (hereinafter referred to as the "Availability
Period") commencing on the day following the date of delivery
(which shall not be made later than 60 days after the date of
this Agreement) to the Bank of a certified copy of an extract of
the minutes of the Board of Directors deciding on the principle
of the acquisition referred to in Clause 2 and ratifying the
signature of this Agreement by Xx. Xxxxxxxx Xxxxxx.
CLAUSE 4 - DRAWINGS
4.1 - NOTICE OF DRAWING
Each Drawing shall be made on a Business Day. Any request
for a Drawing must be notified to the Bank not later than
10 a.m. (Paris time) on the Business Day prior to the
proposed Drawing Date, in the case of FRF Drawings, and 2
Business Days in the case of any other Drawings. Any
request for renewals shall be subject to the same notice.
In the case of large Drawings, the Client shall, to the
extent possible, inform the Bank as early as possible
prior thereto.
Notification of a request for a Drawing shall be given by
telephone and shall be confirmed by fax by the Client in
the form set out in the Schedule and any such fax shall be
as effective between the parties as if it were an
original.
Subject to Clauses 5.3.1 and 5.3.4, the notice of Drawing
duly signed by authorised persons shall irrevocably bind
the Client which shall make the Drawing on the date
stipulated in the notice of Drawing.
4.2 - DURATION AND AMOUNT OF EACH DRAWING
Drawings shall not exceed the Available Amount at any
given time and may only be made for a period of seven
days, one month, three months or six months, and all
amounts due in respect thereof shall be paid or repaid not
later than the last day of the Availability Period.
The amount of each Drawing shall not be less than USD TEN
MILLION, or the equivalent thereof for Drawings in DEM,
FRF or GBP. The Client shall, to the extent reasonably
possible, use its best endeavours to keep the number of
Drawings outstanding at any time to a minimum.
Each Drawing shall be repaid on the last day of the
relevant Drawing period or, if such day is not a Business
Day, on the following Business Day.
4.3 - ACCOUNTING AND AVAILABILITY OF FUNDS
In order to keep accounting records of the implementation
of this Facility the Bank shall open in the name of the
Client a special account which shall be a non-running,
simple accounting mechanism which shall not have the legal
effects of a running account ("compte courant").
The amount of each Drawing shall be entered by the Bank as
a credit in the current account of the Client.
The transactions resulting from the Drawings and
repayments of the credit shall be excluded from all
running accounts which the Client has or may have with the
Bank.
The Client acknowledges that the making and repayment of
borrowings hereunder shall be adequately evidenced in the
accounts of the Bank.
CLAUSE 5 - FEES - INTEREST
5.1 - MANAGEMENT FEE
The Client shall pay to the Bank, on the date of signature
of this Agreement, a management fee in an amount
(excluding tax) of 150,000 US Dollars.
5.2 - FACILITY FEE
A Facility fee calculated on the total amount of the
Facility, being U.S.D. 1,100,000,000 subject to Clause 8.2
(whether or not any Drawing is made) on a 360-day year
basis shall be paid to the Bank quarterly in advance, and
the first payment shall be made on the date of signature
of this Agreement.
The Facility fee shall be at a rate of 1/8 of 1% per annum
until the expiry of this Agreement.
5.3 - INTEREST
5.3.1 - Calculation of interest on Drawings in French Francs
Subject to the provisions of Clause 5.3.7, the reference
rate applicable to Drawings of 1, 3 or 6 months is the
corresponding PIBOR as defined in Clause 5.3.2.
As regards seven day Drawings, the reference rate shall be
determined by the Bank as being the average (rounded up,
if necessary, to the nearest 1/16 of 1% per annum) of the
rates at which deposits are offered in the Paris
inter-bank market by the relevant Reference Banks on the
Business Day preceding the proposed Drawing Date at about
11.00 a.m. (Paris time) for a duration and in an amount
equal to those of the relevant Drawing. The Bank shall
forthwith inform the Client of such determination by
telephone, whereupon the Client shall be entitled, if the
rate so determined is not acceptable to it, to cancel the
Drawing or select a duration of 1, 3 or 6 months therefor.
Interest in respect of any FRF Drawing shall be calculated
at the aggregate of the reference rate and a margin of
0.175% per annum on the basis of the exact number of days
in the Drawing period divided by 360.
Interest shall be payable without deduction for impost,
taxes and/or withholding at source.
Interest shall be payable on the last day of the relevant
Drawing period or, if such day is not a Business Day, on
the following Business Day.
5.3.2 - Definition of PIBOR
PIBOR, in respect of any French Franc denominated Drawing
means the annual rate published by TELERATE (currently
page 20041) under the aegis of the Association Francaise
des Banques ("AFB") at about 11.30 a.m. (Paris time) on
the Business Day preceding the proposed Drawing date or
the date of renewal thereof, as being the rate at which
French Franc deposits are offered on the Paris Interbank
Market for the period of such Drawing or renewal, as the
case may be.
5.3.3 - Non-publication of PIBOR
If PIBOR, as calculated and published by the AFB, ceases
to be published for any reason whatsoever the Bank shall
forthwith notify the Client by any method and the
following provisions shall apply:-
- if a reference rate replacing PIBOR is published
under the aegis of the AFB, such rate shall be
immediately applicable to any new Drawings and
renewals thereof;
- otherwise, the Bank and the Client shall negotiate
in order to agree a new reference rate for 1, 3 or 6
months Drawings.
In the event of failure to agree and for so long as no
mechanism for the determination of a reference rate for 1,
3 or 6 month Drawings shall not have been officially
established, Drawings may only be made for periods of
seven days and interest shall accrue thereon in accordance
with the second paragraph of Clause 5.3.1.
5.3.4. - Calculation of interest on Drawings in USD, DEM or
GBP
Drawings in USD, DEM or GBP shall have a duration of seven
days, 1, 3 or 6 months.
The Client may request two Business Days prior to the end
of each Drawing period the conversion in whole or in part
of one or more Drawings into a currency of its choice
(being USD, DEM, FRF or GBP) without exceeding the
Available Amount, subject to such conversion not resulting
in the Facility amount being exceeded (by virtue of a
change of parity between the currencies used and United
States Dollars) by 5% or more of the total Facility amount
Provided that the Client shall eliminate such excess by
adjusting the amount of subsequent Drawings to the extent
necessary.
Subject to the preceding paragraph, repayment of each
Drawing shall be made in the currency in which such
Drawing is denominated.
Subject to Clause 5.3.8, the reference rate applicable to
Drawings in USD, DEM or GBP for a duration of 1, 3 or 6
months shall be LIBOR as defined in Clause 5.3.5.
As regards seven day Drawings, the relevant reference rate
shall be determined by the Bank as being the average
(rounded up, if necessary, to the nearest 1/16 of 1% per
annum) of the rates at which deposits are offered in the
London inter-bank market by the relevant Reference Banks
two Business Days preceding the proposed Drawing date at
about 11.00 a.m. (London time) for a duration and in an
amount equal to those of the relevant Drawing. The Bank
shall forthwith inform the Client of such determination by
telephone, whereupon the Client shall be entitled, if the
rate so determined is not acceptable to it, to cancel the
Drawing or select a duration of 1, 3 or 6 months therefor.
Interest in respect of any USD, DEM or GBP Drawings shall
be calculated at the aggregate of the relevant reference
rate and a margin of 0.175% per annum in accordance with
euromarket practice on a 365/360 basis not later than the
first day of each period selected, except that it will be
calculated on a 365/365 basis for GBP.
Interest shall be payable without deduction for impost,
taxes and/or withholding at source.
Interest shall be payable on the last day of the relevant
Drawing period or, if such day is not a Business Day, on
the following Business Day.
In the event that, at the date for repayment of a Drawing
in USD, DEM or GBP, the relevant currency shall not be
available on the London interbank market, the Bank and the
Client shall consult with a view to reaching agreement on
a replacement currency for the payment of principal and
interest in respect of such Drawing and, failing such
agreement within two Business Days, FRF shall be the
replacement currency.
5.3.5 - Definition of LIBOR
LIBOR (London Interbank Offered Rate), in respect of any
USD, DEM or GBP denominated Drawing, means the annual rate
published by TELERATE (currently page 3750) under the
aegis of the British Bankers Association at about 11.00
a.m. (London time) two Business Days prior to the proposed
Drawing date or date of renewal thereof, as being the rate
at which deposits in the relevant currency are offered on
the London Interbank Market for the period of such Drawing
or renewal, as the case may be.
5.3.6 - Unavailability of LIBOR
In the event that the Bank shall be unable to determine
LIBOR, the Bank shall promptly notify the Client,
whereupon the Client and the Bank shall commence
negotiations with a view to finding a mutually acceptable
solution. The Bank shall be under no obligation to pursue
such negotiation after the expiry of a period of 30 days
after the date of such notice. In the absence of
agreement, the applicable reference rate shall be
determined by the Bank as being the average (rounded up,
if necessary, to the nearest 1/16 of 1% per annum) of the
rates at which deposits are offered in the London
inter-bank market by the Reference Banks two Business Days
preceding the proposed Drawing Date at about 11.00 a.m.
(London time) for a duration and in an amount equal to
those of the relevant Drawing.
5.3.7 - 1, 3 and 6 month French Franc Drawings substitute
rate
In the event that, on the Business Day prior to a proposed
Drawing date or date of renewal thereof, the Bank shall
determine, as a result of consulting the relevant
Reference Banks in Paris, that the arithmetic mean of the
rates at which FRF deposits are offered by them in the
Paris inter-bank market for a duration and in an amount
equivalent to those of the relevant Drawing is higher than
the PIBOR which would otherwise apply to such Drawing by
more than 1/16% per annum, the applicable reference rate
shall be that determined by the Bank as being the average
(rounded up, if necessary, to the nearest 1/16 of 1% per
annum) of the rates at which FRF deposits are offered in
the Paris inter-bank market by such Reference Banks on
such Business Day at about 11.30 a.m. (Paris time) for
such duration and amount.
5.3.8 - 1, 3 or 6 month DEM or GBP Drawings substitute rate
In the event that, on the second Business Day prior to the
date on which funds are to be made available in respect of
a Drawing or a renewal thereof, the Bank shall determine,
as a result of consulting the relevant Reference Banks in
London, that the arithmetic mean of the rates at which
deposits in the relevant currency are offered by them in
the London inter-bank market for a duration and in an
amount equivalent to those of the relevant Drawing is
higher than the LIBOR which would otherwise apply to such
Drawing by more than 1/16% per annum, the applicable
reference rate shall be that determined by the Bank as
being the average (rounded up, if necessary, to the
nearest 1/16 of 1% per annum) of the rates at which
deposits in the relevant currency are offered in the
London inter-bank market by such reference banks on such
Business Day at about 11.30 a.m. (London time) for such
duration and amount.
5.3.9 - Reference Banks
Whenever a reference rate shall be set on the basis of
Reference Banks' quotations, the Bank shall notify such
quotations to the Client. The Bank's determination of
reference rates on such basis, shall, in the absence of
manifest error, be conclusive.
In the event that no or only one Reference Bank provides
any quotation prior to the making or renewal of any
Drawing, the reference rate for such Drawing shall be the
annual rate which the Bank shall certify to the Client as
representing the cost of funding such Drawings from
external sources, such certificate to be accompanied by
relevant evidence of such cost.
5.4 - PLACE OF PAYMENT
All payments to be made under this Agreement shall be made
by transfer to the account of the Bank:-
(i) in the case of DEM, with Societe Generale
Frankfurt - SOGE DE FF, Mainzer Xxxxxxxxxxx 00
Xxxxxxxx 000000, D6000 Frankfurt Am Main 1 (Germany)
under reference Xxxxx-Xxxxxxx Xxxxx/Xxxxxxxx, Mme
Francoise Graviche-Xxxxxxx - Eurocredits;
(ii) in the case of FRF, with Societe Generale Paris
- SOGE FR PP, under reference Xxxxx-Xxxxxxx
Xxxxx/Xxxxxxxx (Code Guichet 699-3), Mme Francoise
Graviche-Xxxxxxx - Eurocredits;
(iii) in the case of GBP, with Societe Generale London
- SGE XX 0X, Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX (Xxxxxx Xxxxxxx), under reference
Xxxxx-Xxxxxxx Xxxxx/Xxxxxxxx, Mme Francoise
Graviche-Xxxxxxx - Eurocredits;
(iv) in the case of USD, with Societe Generale New
York - SOGE US 33, currently at 0000 xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx X.X. 00000 (Xxxxxx Xxxxxx), no.
0152595 under reference Xxxxx-Xxxxxxx Xxxxx/Xxxxxxxx,
Mme Francoise Graviche-Xxxxxxx - Eurocredits.
The Client irrevocably authorises the Bank to deduct the
amount required for payment of all sums due under this
Agreement from its current account at SOCIETE XXXXXXXX
XXXXX, 0, xxx Xxxxx, 00000 Xxxxx.
CLAUSE 6 - EFFECTIVE GLOBAL RATE
For the purposes of sections L. 313-3 et seq. of the French
Consumers Code ("Code de la Consommation") and the order
("decret") 85-944 of 4th September, 1985 and assuming a maximum
borrowing denominated in USD for the term of the Facility and
otherwise on the financial terms set out in this Agreement, the
Bank hereby notifies the Client, by way of example, that LIBOR
for one month being 5.875%, the effective global rate is
therefore 6.29% per annum.
The effective global rate applicable for each Drawing will
depend on the manner in which Drawings are made under this
Agreement.
CLAUSE 7 - CHANGES IN CIRCUMSTANCES
The terms for remunerating the Bank in respect of the Facility
have been fixed on the basis of the regulations applicable on
the date of signature of this Agreement and the Client's
membership of the XXXXX-XXXXXXX Group.
If XXXXX-XXXXXXX S.A.'s direct or indirect participation in the
capital of XXXXX-XXXXXXX XXXXX INC. falls below 50%, the Bank
and the Client shall agree either on a prepayment of the
Facility together with interest and all other amounts relating
thereto or on increased terms, which in any event shall be a
maximum of PIBOR (for French Franc Drawings) or LIBOR (for USD,
DEM or GBP Drawings) plus 0.25% and a Facility fee of 0.25% per
annum.
If, following a new legislative or regulatory provision or
interpretation by a competent authority, such provision or
authority being French, European, United States or foreign,
whereby the Bank is subject to any tax, monetary, financial or
banking measure resulting in an additional cost relating to this
Agreement (arising, for example, from reserves or obligatory
deposits, share capital, liquidity or other ratios or any tax,
or other taxation, except corporation tax) resulting in a
reduction of payment to the Bank or if such reduction of payment
results from a judicial decision, the following provisions shall
apply:-
- the Bank shall notify the Client in writing, indicating
the estimated increase in costs under this Agreement or of
the reduction of its payment in respect of this Agreement
and the required indemnity, enclosing documents providing
evidence thereof,
- the Client and the Bank, on the initiative of the Bank
shall consult as soon as practicable and negotiate during
a maximum period of 30 days from the date of the said
notice in order to reach a solution which permits the
resolution of any difficulties arising, in the same spirit
of cooperation as presided over this Agreement.
In the event of disagreement at the end of the period of
consultation, the Client shall have the option within a maximum
period of seven business days following the last day of the
period of 30 days either:-
- to request the Bank to continue the Facility, undertaking
nevertheless to be wholly liable for the additional cost
incurred by the Bank from the day such cost is incurred by
the Bank; or
- to terminate the Facility by prepayment of all sums due in
principal, interest and fees, increased as necessary by
all fees and all costs incurred by the Bank relating to
such prepayment (including and upon presentation of
evidence, the estimated cost of replacing the funds on the
date of prepayment).
CLAUSE 8 - CANCELLATION
8.1 AUTOMATIC CANCELLATION
The Facility shall expire 60 days after the date of
signature of this Agreement in the event of the Client
failing to deliver the certified copy extract referred to
in Clause 3 prior to the expiry of such 60 days.
8.2 VOLUNTARY CANCELLATION
The Client may at any time cancel the Facility in whole or
in part, subject to prior written notice to the Bank.
However, such cancellation shall only have effect seven
calendar days after receipt of such letter by the Bank.
Such cancellation shall be definitive so that the amount
of the Facility shall be reduced accordingly.
Consequently, the Facility fee shall cease to be due on
the cancelled portion of the Facility with effect from the
expiry of the quarterly period for the Facility fee during
which the cancellation has taken effect.
CLAUSE 9 - PREPAYMENT
The Client may not prepay one or more outstanding Drawings
without the prior express consent of the Bank.
In the event of such consent, such prepayment may be made upon
the following conditions:-
- each prepayment shall be in respect of a whole Drawing.
It may only be effected on a Business Day;
- the request for prepayment by the Client shall relate to a
minimum of USD 50,000,000 and shall reach the Bank with
seven calendar days' prior notice;
- the Client shall indemnify the Bank for all potential
losses to the Bank resulting from the difference between
the interest rate applied to the relevant Drawing and the
rate obtained by the Bank in replacing the funds on the
market during the remaining period until the date of
repayment of the Drawing.
CLAUSE 10 - DEFAULT INTEREST
All sums due under this Agreement shall without prior notice
bear interest at TMP, in the case of French Franc amounts, or at
the relevant overnight London inter-bank offered rate in the
case of USD, DEM or GBP amounts plus, in each case, 1% per annum
from their due date for payment until actual payment.
Such provision shall not constitute a waiver of the obligation
to pay on the relevant due date.
Interest shall be capitalised if it is due for one year in
accordance with the provisions of 1154 of the Civil Code.
CLAUSE 11 - TAXES AND EXPENSES
Payment of any sum due by the Client under this Agreement shall
be effected net of any tax retained at source or any present or
future withholding of whatever nature.
The Client shall be liable for all duly evidenced expenses
incurred in good faith by the Bank in the preparation, signing
and performance of this Agreement up to USD 30,000. In addition,
the Client shall be liable for all expenses and fees incurred by
the Bank in recovering sums due by the Client.
CLAUSE 12 - WAIVERS
The non-exercise or late exercise by the Bank of any right
arising out of this Agreement shall not constitute a waiver of
that right. Any partial exercise of a right shall not preclude
any further exercise of rights which have not been fully
exercised. The rights provided in this Clause shall be
cumulative with any right provided by law.
CLAUSE 13 - DOMICILE
For the performance of this Agreement, the Bank elects as its
domicile the place indicated in Clause 14 and, the Client elects
its registered office.
CLAUSE 14 - NOTICES
Any notice to be given under this Agreement shall be addressed
as follows:-
(i) if to the Bank, to
FOR CREDIT MATTERS:
Societe Generale
MARC/FIN/Acq
Tour Societe Generale
17 cours Valmy
92987 Paris La Defense Cedex
France
For the attention of Xx. Xxxxxxxxx XXXXX/Mlle Xxxxxxxx
LE BOULC'H
Fax no.: (33.1) 00 00 00 00 Tel no.: (33.1) 00 00 00 00
FOR OPERATIONAL AND ADMINISTRATIVE MATTERS:
Societe Generale
MARC/GEF/tit/eur
Tour Societe Generale
17 cours Valmy
92987 Paris La Defense Cedex
France
For the attention of Mlle Xxxxxxxx Xxxxxxxx
Fax no.: (33.1) 00 00 00 00 Tel no.: (33.1) 00 00 00 00
(ii) if to the Client, to
Xxxxx-Xxxxxxx Xxxxx Inc.
000 Xxxxxx Xxxx
Xxxxxxxxxxxx
Xxxxxxxxxxxx
Xxxxxx Xxxxxx of America
For the attention of the Corporate Treasurer
or in his absence the Deputy Corporate Treasurer
Fax no.: 000 000 0000 Tel no.: 000 000 0000
or, in either case, to such other address as may be notified
from time to time for that purpose by the relevant party.
CLAUSE 15 - GOVERNING LAW
This Agreement shall be governed by French law and all disputes
not resolved by common agreement shall be submitted to the
non-exclusive jurisdiction of the Tribunal de Commerce of Paris.
SIGNED IN PARIS,
IN TWO ORIGINALS
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxxx Xxxxxx
SOCIETE GENERALE XXXXX-XXXXXXX XXXXX INC.
Exhibit 10(e)
XXXXX-XXXXXXX
XXXXX INC.
LOAN FACILITY AGREEMENT
dated 7th August 1995
CREDIT LYONNAIS
XXXXXXXXX AND MAY
000, XXXXXX XXXXXX
00000 XXXXX
THIS AGREEMENT IS MADE THE 7TH DAY OF AUGUST 1995
BETWEEN
CREDIT LYONNAIS, a French corporation with a stated capital of
FRF 9,389,925,000, whose registered office is at Lyon (Rhone)
00, xxxxxx xx xx Xxxxxxxxxx and whose principal office is at 00,
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered under
No. B 954 509 741, Lyon Commercial Register represented by
Xxxx-Xxxxx XXXXXXX
(hereinafter referred to as the "Bank")
OF THE ONE PART
AND
XXXXX-XXXXXXX XXXXX INC., a company with a share capital of
USD 429 million whose registered office is at Collegeville, 000
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxx Xxxxxx of America, represented
by Xx. Xxxxxxxx Xxxxxx, Corporate Treasurer,
(hereinafter referred to as the "Client")
OF THE OTHER PART
NOW IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1 - DEFINITIONS
The following definitions shall have the following respective
meanings, unless the context other requires:-
"Available Amount" means, on any date, the amount of the
Facility less the aggregate amount of the Drawings outstanding.
"Business Day" means a whole day not being a Saturday on which
the interbank market is open or banks are open (i) in Paris, in
the case of French Franc Drawings and (ii) in London and Paris,
in the case of any other Drawing.
"Drawing" means a Drawing made under the Facility or, as the
case may be, the amount thereof for the time being outstanding.
"Facility" means the unconditional, irrevocable, confirmed
facility made available by the Bank to the Client the maximum
amount whereof is stated in Clause 2.
"Reference Banks" means (i) in the case of DEM, Bayerische
Landesbank, Caisse des Depots et Consignations and Commerzbank,
(ii) in the case of FRF, Caisse des Depots et Consignations,
Caisse Nationale du Credit Agricole and Credit Commercial de
France, (iii) in the case of GBP, Barclays Bank, Caisse des
Depots et Consignations and Lloyds Bank and (iv) Caisse des
Depots et Consignations, Chemical Bank and X.X. Xxxxxx.
CLAUSE 2 - PURPOSE
The object of the Facility shall be the financing or refinancing
in whole or in part of (i) the acquisition price of a group of
companies whose dominant activity is similar or complementary to
that of the Client and all or some of whose holding company's
share capital is listed, (ii) the indebtedness (including share
capital which may be repurchased or redeemed) of the Client or
any of its subsidiaries, (iii) the expenses associated with such
acquisition and (iv) any procedures related to buying out
minorities.
CLAUSE 3 - AMOUNT AND DURATION OF THE FACILITY
The Bank hereby grants to the Client an unconditional,
irrevocable, confirmed loan facility in the maximum amount of
1,500,000,000 United States Dollars or its equivalent in
Deutsche Marks, French Francs and Pounds Sterling.
Drawings under the Facility may be made during the period of
seven months (hereinafter referred to as the "Availability
Period") commencing on the date of delivery (which shall not be
made later than 60 days after the date of this Agreement) to the
Bank of a certified copy of an extract of the minutes of the
Board of Directors ratifying the signature of this Agreement.
CLAUSE 4 - DRAWINGS
4.1 - NOTICE OF DRAWING
Each Drawing shall be made on a Business Day. Any request
for a Drawing must be notified to the Bank not later than
10 a.m. (Paris time) on the Business Day prior to the
proposed Drawing Date, in the case of FRF Drawings, and 2
Business Days in the case of any other Drawings. Any
request for renewals shall be subject to the same notice.
Notification of a request for a Drawing shall be given by
the Client in the form set out in the Schedule and may be
sent by fax which shall be as effective between the
parties as if it were an original and the Client hereby
relieves the Bank of any liability which might result from
any faulty, improper or fraudulent use of such means of
transmission other than by the Bank.
Subject to Clauses 5.3.1 and 5.3.4, the notice of Drawing
duly signed by authorised persons shall irrevocably bind
the Client which shall make the Drawing on the date
stipulated in the notice of Drawing.
4.2 - DURATION AND AMOUNT OF EACH DRAWING
Drawings not exceeding the Available Amount may be made
for a period of eight days, one month, three months or six
months, and all amounts due in respect thereof shall be
paid or repaid not later than the last day of the
Availability Period.
The amount of each Drawing shall not be less than USD
FIFTY MILLION, or the equivalent thereof for Drawings in
DEM, FRF or GBP.
Each Drawing shall be repaid on the last day of the
relevant Drawing period or, if such day is not a Business
Day, on the following Business Day except that if the
following Business Day falls in a new calendar month, then
on the preceding Business Day.
4.3 - ACCOUNTING AND AVAILABILITY OF FUNDS
In order to keep accounting records of the implementation
of this Facility the Bank shall open in the name of the
Client a special account which shall be a non-running,
simple accounting mechanism which shall not have the legal
effects of a running account.
The amount of each Drawing shall be entered by the Bank as
a credit in the current account of the Client.
The transactions resulting from the Drawings and
repayments of the credit shall be excluded from all
running accounts which the Client has or may have with the
Bank.
The Client acknowledges that the making and repayment of
borrowings hereunder shall be adequately evidenced in the
accounts of the Bank.
CLAUSE 5 - FEES - INTEREST
5.1 - MANAGEMENT FEE
The Client shall pay to the Bank, on the date of signature
of this Agreement, a management fee in an amount excluding
tax of 150,000 US Dollars.
5.2 - COMMITMENT FEE
A commitment fee shall be paid to the Bank in arrear every
90 days after the date of this Agreement or, if
applicable, at the termination of the Availability Period,
and calculated at a rate of 0.15% per annum on the daily
Available Amount during the relevant 90 day period (or
other such period, if applicable) on a 360-day year basis.
5.3 - INTEREST
5.3.1 - Calculation of interest on Drawings in French Francs
The interest reference rate applicable to Drawings of 1, 3
or 6 months is the corresponding PIBOR as defined in
Clause 5.3.2.
As regards eight day Drawings, the relevant reference rate
shall be determined by the Bank as being the average
(rounded up, if necessary, to the nearest 1/16 of 1% per
annum) of the rates at which deposits are offered in the
Paris inter-bank market by prime banks to the relevant
Reference Banks on the Business Day preceding the proposed
Drawing Date at about 11.00 a.m. (Paris time) for a
duration and in an amount equal to those of the relevant
Drawing. The Bank shall forthwith inform the Client of
such determination by telephone, whereupon the Client
shall be entitled, if the rate so determined is not
acceptable to it, to cancel the Drawing or select a
different duration therefor.
Interest in respect of any FRF Drawing shall be calculated
at the aggregate of the relevant reference rate and a
margin of 0.325% per annum, on the basis of the exact
number of days in the Drawing period divided by 360.
Interest shall be paid on the last day of the relevant
Drawing period or, if such day is not a Business Day, on
the following Business Day, except that if the following
Business Day falls in a new calendar month, then on the
preceding Business Day.
5.3.2 - Definition of PIBOR
PIBOR, in respect of any French Franc denominated Drawing
means the annual rate published by TELERATE (currently
page 20041) under the aegis of the Association Francaise
des Banques ("AFB") at about 11.30 a.m. (Paris time) on
the Business Day preceding the proposed Drawing or renewal
date, as being the rate at which French Franc deposits are
offered on the Paris Interbank Market for the period of
such Drawing or renewal, as the case may be.
5.3.3 - Non-publication of PIBOR
If PIBOR, as calculated and published by the AFB, ceases
to be published for any reason whatsoever the Bank shall
forthwith notify the Client by any method and the
following provisions shall apply:-
- if a reference rate replacing PIBOR is published
under the aegis of the AFB, such rate shall be
immediately applicable to any new Drawings and
renewals thereof;
- otherwise, the Bank and the Client shall negotiate
in order to agree a new reference rate for 1, 3 or 6
months Drawings.
In the event of failure to agree and for so long as no
mechanism for the determination of a reference rate for 1,
3 or 6 month Drawings shall not have been officially
established, Drawings may only be made for periods of 8
days and interest shall acrrue thereon in accordance with
the second paragraph of Clause 5.3.1.
5.3.4. - Calculation of interest on Drawings in USD, DEM or
GBP
Drawings in USD, DEM or GBP shall have a duration of 8
days, 1, 3 or 6 months.
The Client may request two Business Days prior to the end
of each Drawing period the conversion of one or more
Drawings, in whole or, if in part, then in minimum amounts
of USD 50 million or approximate equivalents thereof in
another authorised currency, into a currency of its choice
without exceeding the Available Amount, subject to such
conversion not resulting in the Facility amount being
exceeded by virtue of a change of parity between the
currencies used and United States Dollars.
Subject to the preceding paragraph, repayment of each
Drawing shall be made in the currency in which such
Drawing is denominated.
The reference rate applicable to Drawings in USD, DEM or
GBP for a duration of 1, 3 or 6 months shall be LIBOR as
defined in Clause 5.3.5. Provided that the Client shall
pay to the Bank, in the case of any GBP Drawing,
additional interest equal to the difference between the
LIBOR applied to such Drawing and the actual rate at which
and the LIBOR which would have applied if it had been
determined on the Drawing date.
As regards eight day Drawings, the relevant reference rate
shall be determined by the Bank as being the average
(rounded up, if necessary, to the nearest 1/16 of 1% per
annum) of the rates at which deposits are offered in the
London inter-bank market by prime banks to the relevant
Reference Banks two Business Days preceding the proposed
Drawing date at about 11.00 a.m. (London time) for a
duration and in an amount equal to those of the relevant
Drawing. The Bank shall forthwith inform the Client of
such determination by telephone, whereupon the Client
shall be entitled, if the rate so determined is not
acceptable to it, to cancel the Drawing or select a
different duration therefor.
Interest in respect of any USD, DEM or GBP Drawing shall
be calculated at the aggregate of the relevant reference
rate and a margin of 0.325% per annum, in accordance with
euromarket practice on a 365/360 basis at the commencement
of each period selected, except that it will be calculated
on a 365/365 basis for GBP.
Interest shall be payable without any deduction
whatsoever, including for impost, taxes and/or withholding
at source.
Interest shall be paid on the last day of the relevant
Drawing period or, if such day is not a Business Day, on
the following Business Day except that if the following
Business Day falls in a new calendar month, then on the
preceding Business Day.
In the event that, at the date for repayment of a Drawing
in USD, DEM or GBP, the relevant currency shall not be
available on the interbank market, the Bank and the Client
shall consult with a view to reaching agreement on a
replacement currency for the payment of principal and
interest in respect of such Drawing and, failing such
agreement, FRF shall be the replacement currency.
5.3.5 - Definition of LIBOR
LIBOR (London Interbank Offered Rate), in respect of any
USD, DEM or GBP denominated Drawing, means the annual rate
published by TELERATE (currently page 3750) under the
aegis of the British Bankers Association at about 11.00
a.m. (London time) two Business Days prior to the proposed
Drawing or renewal date, as being the rate at which
deposits in the relevant currency are offered on the
London Interbank Market for the period of such Drawing or
renewal, as the case may be.
5.3.6 - Unavailability of LIBOR
In the event that the Bank shall be unable to determine
LIBOR, the Bank shall promptly notify the Client,
whereupon the Client and the Bank shall commence
negotiations with a view to finding a mutually acceptable
solution. The Bank shall be under no obligation to pursue
such negotiation after the expiry of a period of 30 days
after the date of such notice. In the absence of
agreement, the applicable reference rate shall be
determined by the Bank as being the average (rounded up,
if necessary, to the nearest 1/16 of 1% per annum) of the
rates at which deposits are offered in the London
inter-bank market by prime banks to the relevant Reference
Banks two Business Days preceding the proposed Drawing
Date at about 11.00 a.m. (London time) for a duration and
in an amount equal to those of the relevant Drawing.
5.3.7 - Evidence
Whenever a reference rate shall be determined on the basis
of reference banks' quotations, notice of such quotations
shall, upon request by the Client, forthwith be provided
by the Bank to the Client.
5.4 - PLACE OF PAYMENT
All payments to be made under this Agreement shall be made
by transfer to the account of Credit Lyonnais - DME, La
Defense 6, Tour Credit Xxxxxxxx Xxxxx 00, 00000 Xxxxx La
Defense.
CLAUSE 6 - EFFECTIVE GLOBAL RATE
For the purposes of sections L. 313-3 et seq. of the French
Consumers Code ("Code de la Consommation") and the order
("decret") 85.944 of 4th September, 1985 and assuming a maximum
borrowing for the term of the Facility by renewable Drawings of
one month and the financial terms set out in this Agreement, the
Bank hereby notifies the Client, by way of example, that:-
- PIBOR for one month on 3rd August, 1995, being 6.1250% per
annum, the contractual interest rate is 6.45% per annum,
- the rate for a period of one month is accordingly 0.53750%,
- the effective global rate is therefore 6.45017% per annum.
The effective global rate applicable for each Drawing will
depend on the manner in which Drawings are made under this
Agreement.
CLAUSE 7 - CHANGES IN CIRCUMSTANCES
The terms for remunerating the Bank in respect of the Facility
have been fixed on the basis of the regulations applicable on
the date of signature of this Agreement.
If, following a new legislative or regulatory provision or
interpretation by a competent authority, such provision or
authority being French, European or foreign, whereby the Bank is
subject to any tax, monetary, financial or banking measure
resulting in an additional cost relating to this Agreement
(arising, for example, from reserves or obligatory deposits,
share capital, liquidity or other ratios or any tax, or other
taxation, except corporation tax) resulting in a reduction of
any amounts received or to be received by the Bank or if such
reduction of any amounts received or to be received by the Bank
results from a judicial decision, the following provisions shall
apply:-
- the Bank shall notify the Client in writing, indicating the
estimated increase in costs under this Agreement or of the
reduction of its payment in respect of this Agreement and
the required indemnity, enclosing documents providing
evidence thereof,
- the Client and the Bank, on the initiative of the Bank shall
consult as soon as practicable and negotiate during a
maximum period of 30 days from the date of the said notice
in order to reach a solution which permits the resolution of
any difficulties arising, in the same spirit of cooperation
as presided over this Agreement.
In the event of disagreement at the end of the period of
consultation, the Client shall have the option within a maximum
period of 7 business days following the last day of the period
of 30 days either:-
- to request the Bank to continue the Facility, undertaking
nevertheless to be wholly liable for the additional cost
incurred by the Bank from the day such cost is incurred by
the Bank; or
- to terminate the Facility by prepayment of all sums due in
principal, interest and fees, increased as necessary by all
fees and all costs incurred by the Bank relating to such
prepayment (including and upon presentation of evidence, the
estimated cost of replacing the funds on the date of
prepayment).
CLAUSE 8 - CANCELLATION
8.1 AUTOMATIC CANCELLATION
The Facility shall expire 60 days after the date of
signature of this Agreement in the event of the Client
failing to deliver the certified copy extract referred to in
Clause 3 prior to the expiry of such 60 days, whereupon the
Client shall pay the commitment fee to the Bank as if the
Facility had been in force for 90 days.
8.2 VOLUNTARY CANCELLATION
The Client may at any time cancel the Facility in whole or
in part, subject to 15 days' prior written notice to the
Bank.
Such cancellation shall be definitive so that the amount of
the Facility shall be reduced accordingly and the commitment
fee shall cease to be due on the cancelled portion of the
Facility with effect from the expiry of such notice period
Provided Always that in respect of the first 90 days of this
Agreement, the fee shall be due as if the Facility had
remained fully in force for such 90 days.
CLAUSE 9 - PREPAYMENT
The Client may not prepay one or more outstanding Drawings
without the prior express consent of the Bank.
In the event of such consent, such prepayment may be made upon
the following conditions:-
- each prepayment shall be in respect of a whole Drawing. It
may only be effected on a Business Day;
- the request for prepayment by the Client shall reach the
Bank with 7 calendar days' notice;
- the Client shall indemnify the Bank for all potential losses
to the Bank resulting from the difference between the
interest rate applied to the relevant Drawing and the rate
obtained by the Bank in replacing the funds on the market
during the remaining period until the date of repayment of
the Drawing.
CLAUSE 10 - DEFAULT INTEREST
All sums due under this Agreement shall without prior notice
bear interest at TMP or at the overnight rate for the relevant
currency plus 1% per annum from their due date for payment until
actual payment.
Such provision shall not constitute a waiver of the obligation
to pay on the relevant due date.
Interest shall be capitalised if it is due for one year in
accordance with the provisions of 1154 of the Civil Code.
CLAUSE 11 - TAXES AND EXPENSES
Payment of any sum due by the Client under this Agreement shall
be effected net of any tax retained at source or any present or
future withholding of whatever nature.
The Client shall be liable for all expenses and fees incurred by
the Bank in recovering sums due by the Client under this
Agreement.
CLAUSE 12 - WAIVERS
The non-exercise or late exercise by the Bank of any right
arising out of this Agreement shall not constitute a waiver of
that right. Any partial exercise of a right shall not preclude
any further exercise of rights which have not been fully
exercised. The rights provided in this Clause shall be
cumulative with any right provided by law.
CLAUSE 13 - DOMICILE
For the performance of this Agreement and subsequent agreements,
the Bank elects as its domicile the place indicated above for
payments and, the Client elects its registered office.
CLAUSE 14 - GOVERNING LAW
This Agreement shall be governed by French law and all disputes
not resolved by common agreement shall be submitted to the
non-exclusive jurisdiction of the Tribunal de Commerce of Paris.
SIGNED IN PARIS,
IN TWO ORIGINALS
/s/ Xxxx-Xxxxx Xxxxxxx /s/ Philippe Xxxxxx
Xxxx-Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
CREDIT LYONNAIS XXXXX-XXXXXXX XXXXX INC.
