Exhibit 99 (1)
AGREEMENT
DATED 20 February, 2001
US$3,000,000,000
CREDIT FACILITY
FOR
SCHLUMBERGER LIMITED
SCHLUMBERGER PUBLIC LIMITED COMPANY
SCHLUMBERGER INDUSTRIES S.A.
and
SCHLUMBERGER INVESTMENTS
ARRANGED BY
X.X. XXXXXX PLC
BNP PARIBAS
and
SALOMON BROTHERS INTERNATIONAL LIMITED
as Lead Arrangers
and
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
as Arranger
WITH
CITIBANK INTERNATIONAL plc
as Facility Agent
Xxxxx & Overy
London
newchange
BK:831492.7
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INDEX
Clause Page No.
1. Interpretation.................................................. 1
2. Facility........................................................ 18
3. Purpose......................................................... 18
4. The Offer....................................................... 19
5. Conditions precedent............................................ 23
6. Utilisation..................................................... 23
7. Optional Currencies............................................. 25
8. Repayment....................................................... 29
9. Prepayment and cancellation..................................... 29
10. Interest........................................................ 31
11. Terms........................................................... 33
12. Market disruption............................................... 34
13. Taxes........................................................... 34
14. Increased Costs................................................. 39
15. Mitigation...................................................... 39
16. Payments........................................................ 40
17. Representations................................................. 42
18. Information covenants........................................... 46
19. General covenants............................................... 47
20. Default......................................................... 51
21. The Administrative Parties...................................... 56
22. Evidence and calculations....................................... 60
23. Fees............................................................ 60
24. Indemnities and Break Costs..................................... 61
25. Expenses........................................................ 62
26. Amendments and waivers.......................................... 63
27. Changes to the Parties.......................................... 64
28. Disclosure of information....................................... 67
29. Set-off......................................................... 68
30. Pro rata sharing................................................ 68
31. Severability.................................................... 70
32. Counterparts.................................................... 70
33. Notices......................................................... 70
34. Language........................................................ 71
35. Governing law................................................... 72
36. Enforcement..................................................... 72
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Schedules
1. Original Parties..................................................... 73
2. Conditions Precedent Documents....................................... 74
3. Form of Request...................................................... 78
4. Calculation of the Mandatory Cost.................................... 79
5. Form of Transfer Certificate......................................... 81
6. Form of Compliance Certificate....................................... 82
7. Form of Accession Agreement.......................................... 83
Part II Form of Resignation Request................................. 84
8. Form of Legal Opinion of Xxxxx & Xxxxx, London....................... 85
9. Form of TEG Letter................................................... 88
10. Form of Comfort Letter............................................... 90
11. Form of Subordination Agreement...................................... 91
Signatories............................................................... 92
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THIS AGREEMENT is dated 20 February, 2001
BETWEEN:
(1) SCHLUMBERGER LIMITED (a company incorporated in the Netherlands Antilles
registered at the Chamber of Commerce in Curacao with number 1674 (0) and
whose registered address is Xxxxxxxxxxxx 0, Xxxxxxx, Xxxxxxxxxxx Antilles)
(the "Company");
(2) SCHLUMBERGER PUBLIC LIMITED COMPANY, SCHLUMBERGER INDUSTRIES S.A. and
SCHLUMBERGER INVESTMENTS as original borrowers (in this capacity the
"Original Borrowers");
(3) X.X. XXXXXX PLC, BNP PARIBAS, SALOMON BROTHERS INTERNATIONAL LIMITED as
lead arrangers and XXXXXX BROTHERS INTERNATIONAL (EUROPE) as arranger (in
this capacity the "Mandated Arrangers");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as
original lenders (the "Original Lenders");
(5) X.X. XXXXXX PLC as bookrunner (in this capacity the "Bookrunner"); And
(6) CITIBANK INTERNATIONAL plc as facility agent (in this capacity the
"Facility Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"Accession Agreement"
means a letter, substantially in the form of Part I of Schedule 7 (Form of
Accession Agreement), with such amendments as the Facility Agent may
approve or reasonably require.
"Additional Borrower"
means a member of the Group which becomes a Borrower after the date of this
Agreement.
"Administrative Party"
means an Arranger or the Facility Agent.
"ADRs"
means American Depositary Receipts in respect of the Shares.
2
"Affiliate"
means a Subsidiary or a Holding Company of a person or any other Subsidiary
of that Holding Company.
"Arranger"
means a Mandated Arranger or the Bookrunner.
"Availability Period"
means the period from and including the date of this Agreement to and
including the Term Date.
"Borrower"
means the Company, an Original Borrower or an Additional Borrower.
"Borrower Sub-limit"
means:
(a) in the case of SISA, US$1,500,000,000;
(b) in the case of Schlumberger PLC, US$1,000,000,000;
(c) in the case of Schlumberger Investments, US$1,000,000,000; and
(d) in the case of the aggregate Loans outstanding at any time borrowed by
Schlumberger PLC and Schlumberger Investments, US$1,000,000,000.
"Break Costs"
means the amount (if any) which a Lender is entitled to receive under
Clause 24.3 (Break Costs) as compensation if any part of a Loan or overdue
amount is prepaid.
"Business Day"
means a day (other than a Saturday, a Sunday or a public holiday) on which
banks are open for general business in London and:
(a) if on that day a payment in or a purchase of a currency (other than
euro) is to be made, the principal financial centre of the country of
that currency; or
(b) if on that day a payment in or a purchase of euro is to be made, which
is also a TARGET Day.
"Comfort Letter"
means the comfort letter dated on or about the date of this Agreement from
the Company to the Finance Parties, in the form set out in Schedule 10
(Form of Comfort Letter).
3
"Commitment"
means:
(a) for an Original Lender, the amount set opposite its name in Schedule 1
(Original Parties) under the heading "COMMITMENTS" and the amount of
any other Commitment it acquires; and
(b) for any other Lender, the amount of any Commitment it acquires,
to the extent not cancelled, transferred or reduced under this Agreement.
"Dangerous Substance"
means any radioactive emissions and any natural or artificial substance
(whether in the form of a solid, liquid, gas or vapour) the generation,
transportation, storage, treatment, use or disposal of which (whether alone
or in combination with any other substance) and including (without
limitation) any controlled, special, hazardous, toxic, radioactive or
dangerous waste, is capable of causing harm to man or any other living
organism or damaging the Environment or public health.
"Default"
means:
(a) an Event of Default; or
(b) an event which would be (with the expiry of a grace period, the giving
of notice or the making of any determination under the Finance
Documents or any combination of them) an Event of Default.
"Dollars" or "US$"
means the lawful currency for the time being of the United States of
America.
"Environment"
means all, or any of, the following media: the air (including, without
limitation, the air within buildings and the air within other natural or
man-made structures above or below ground), water (including, without
limitation, ground and surface water) and land (including, without
limitation, surface and sub-surface soil).
"Environmental Claim"
means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by that
person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that is capable of giving rise to any remedy or
penalty (whether interim or final) that may be enforced or assessed by
private or public legal action or administrative order or
4
proceedings including, without limitation, any such claim that arises
from injury to persons or property.
"Environmental Contamination"
means each of the following and their consequences:
(a) any release, emission, leakage or spillage of any Dangerous Substance
at or from any site owned or occupied by an Obligor or any Material
Subsidiary of an Obligor into any part of the Environment;
(b) any accident, fire, explosion or sudden event at any site owned or
occupied by an Obligor or any Material Subsidiary of an Obligor which
is directly caused by or attributable to any Dangerous Substance; or
(c) any other pollution of the Environment arising at or from any site
owned or occupied by an Obligor or any Material Subsidiary of an
Obligor.
"Environmental Law"
means all laws and regulations concerning pollution, the Environment or
Dangerous Substances.
"Environmental Licence"
means any authorisation required by any Environmental Law.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued under it.
"ERISA Group"
means the Company and all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common control
which, together with the Company, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"EURIBOR"
means for a Term of any Loan or overdue amount in euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for that Term of that Loan or overdue
amount, the arithmetic mean (rounded upward to four decimal places) of
the rates as supplied to the Facility Agent at its request quoted by
the Reference Banks to leading banks in the European interbank market,
as of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the offering of
deposits in euro for a period comparable to that Term.
5
"euro" OR "E"
means the single currency of the Participating Member States.
"Event of Default"
means an event specified as such in this Agreement.
"Facility"
means the credit facility made available under this Agreement.
"Facility Office"
means the office(s) notified by a Lender to the Facility Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
as the office(s) outside the U.S.A. through which it will perform its
obligations under this Agreement.
"Fee Letter"
means any letter entered into by reference to this Agreement between one or
more Administrative Parties and the Company setting out the amount of
certain fees referred to in this Agreement.
"Final Maturity Date"
means:
(a) the Initial Final Maturity Date; or
(b) if the Term-out Option is exercised, the date falling 364 days after
the Initial Final Maturity Date.
"Finance Document"
means:
(a) this Agreement;
(b) a Fee Letter;
(c) a Transfer Certificate;
(d) an Accession Agreement;
(e) a Subordination Agreement; or
(f) any other document designated as such by the Facility Agent and the
Company.
6
"Finance Party"
means a Lender or an Administrative Party.
"Financial Indebtedness"
means any indebtedness (without double counting) for or in respect of:
(a) moneys borrowed;
(b) any acceptance or documentary credit;
(c) any bond, note, debenture, loan stock or other similar instrument;
(d) any finance or capital lease;
(e) receivables sold or discounted (otherwise than on a non-recourse
basis);
(f) the acquisition cost of any asset to the extent payable more than 180
days before or after its acquisition or possession by the party liable
where the advance or deferred payment is arranged primarily as a
method of raising finance or financing the acquisition of that asset;
(g) any other transaction (including any forward sale or purchase
agreement) which has the commercial effect of a borrowing; or
(h) any guarantee, indemnity or similar assurance against financial loss
of any person in respect of any item referred to in paragraphs (a) to
(g) above.
"Group"
means the Company and its Subsidiaries.
"Holding Company"
of any other person, means a company in respect of which that other person
is a Subsidiary.
"IBOR"
means LIBOR or EURIBOR.
"Increased Cost"
means:
(a) an additional or increased cost;
(b) a reduction in the rate of return under a Finance Document or on its
overall capital; or
(c) a reduction of an amount due and payable under any Finance Document,
7
which is incurred or suffered by a Finance Party or any of its Affiliates
but only to the extent attributable to that Finance Party having entered
into any Finance Document or funding or performing its obligations under
any Finance Document.
"Initial Final Maturity Date"
means the date falling 364 days after the date of this Agreement.
"Internal Revenue Code"
means the Internal Revenue Code 1986, as amended from time to time, and the
regulations promulgated and rulings issued under it.
"Lender"
means:
(a) an Original Lender; or
(b) any person which becomes a Lender after the date of this Agreement.
"LIBOR"
means for a Term of any Loan or overdue amount denominated in a currency
other than euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency or Term of
that Loan or overdue amount, the arithmetic mean (rounded upward to
four decimal places) of the rates, as supplied to the Facility Agent
at its request, quoted by the Reference Banks to leading banks in the
London interbank market,
as of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in the
currency of that Loan or overdue amount for a period comparable to that
Term.
"Loan"
means, unless otherwise stated in this Agreement, the principal amount of
each borrowing under this Agreement or the principal amount outstanding of
that borrowing.
"Majority Lenders"
means, at any time, Lenders:
(a) whose share in the outstanding Loans and whose undrawn Commitments
then aggregate 66 /2/3/ per cent. or more of the aggregate of all the
outstanding Loans and the undrawn Commitments of all the Lenders;
(b) if there is no Loan then outstanding, whose undrawn Commitments then
aggregate 66 /2/3/ per cent. or more of the Total Commitments; or
8
(c) if there is no Loan then outstanding and the Total Commitments have
been reduced to zero, whose Commitments aggregated 66 /2/3/ per cent.
or more of the Total Commitments immediately before the reduction.
"Mandatory Cost"
means the cost of complying with certain regulatory requirements, expressed
as a percentage rate per annum and calculated by the Facility Agent under
Schedule 4 (Calculation of the Mandatory Cost).
"Margin"
means:
(a) in the case of a Loan to:
(i) the Company; or
(ii) for the period ending on the date falling 3 months after the
first utilisation of the Facility by any Borrower, Schlumberger
Investments,
0.30 per cent. per annum; and
(b) in the case of:
(i) a Loan to any Borrower other than the Company or Schlumberger
Investments; and
(ii) a Loan to Schlumberger Investments at any time after the date
falling 3 months after the first utilisation of the Facility by
any Borrower,
0.35 per cent. per annum.
"Margin Stock"
has the meaning given to it in the Regulations.
"Market Purchases"
has the meaning given to that term in Clause 4.1 (Defined terms).
"Material Adverse Effect"
means a material adverse effect on:
(a) the business or financial condition of the Group as a whole; or
(b) the ability of any Obligor to perform its obligations under any
Finance Document.
"Material Subsidiary"
means, at any time:
9
(a) (i) a Subsidiary of Schlumberger PLC or SISA, the book value of
whose total assets then exceed US$50,000,000 (or its equivalent
in any other currency); or
(ii) any other member of the Group which has acquired since the date
of this Agreement, total assets from the Obligors and/or the
Material Subsidiaries the book value of which in aggregate
exceeds US$50,000,000 (or its equivalent in any other currency);
and
(b) for the purposes of Clause 20.5 (Cross-acceleration) only, a direct
Subsidiary of the Company the book value of whose total assets then
exceeds US$50,000,000 (or its equivalent in any other currency).
For this purpose:
(i) the total assets of a Subsidiary of the Company, Schlumberger PLC or
SISA, as appropriate, will be determined from its latest financial
statements (unconsolidated if it has Subsidiaries); and
(ii) if there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the auditors of the Company will be, in
the absence of manifest error, conclusive.
"Maturity Date"
means the last day of the Term of a Revolving Credit Loan.
"Multiemployer Plan"
means at any time, an employee pension benefit plan, within the meaning of
Section 4001(a)(3) of ERISA, to which any member of the ERISA Group;
(a) is then making or accruing an obligation to make contributions; or
(b) has within the preceding five plan years made contributions, including
for these purposes any person which ceased to be a member of the ERISA
Group during that five year period and in respect of which any member
of the ERISA Group could reasonably be expected to have liability
under Title IV of ERISA.
"Obligor"
means the Company or a Borrower.
"Offer"
means the offer made or to be made by Xxxxxx Brothers on behalf of
Schlumberger Investments to purchase the Target's Shares on the terms set
out in the Offer Document (as
10
such offer may from time to time be amended, added to, revised, renewed or
waived) and including any offer to acquire ADRs and any proposal to be made
by or on behalf of Schlumberger Investments to the holders of options to
subscribe for the Target's Shares under any Target share option scheme.
"Offer Document"
means the offer document issued or to be issued by the Company to
shareholders of the Target in respect of the Offer.
"Original Financial Statements"
means the audited consolidated financial statements of the Company for the
year ended 31st December, 1999.
"Original Obligor"
means the Company or an Original Borrower.
"Participating Member State"
means a member state of the European Communities that adopts or has adopted
the euro as its lawful currency under the legislation of the European Union
for European Monetary Union.
"Party"
means a party to this Agreement.
"Permitted Transaction"
means:
(a) the divestiture by the Group of the manufacturing activities relating
to metering "RMS";
(b) the divestiture of the automated test activities business line "ATE";
(c) an intra-Group re-organisation of a Material Subsidiary on a solvent
basis; or
(d) any other transaction agreed to by the Majority Lenders.
"Plan"
means at any time an employee pension benefit plan (other than a
Multiemployer Plan), which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue
Code and either:
(a) is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group; or
(b) has at any time within the preceding five years been maintained, or
contributed to, by any person which was at that time a member of the
ERISA Group for employees of any person which was at that time a
member of the ERISA Group and in respect of
11
which any member of the ERISA Group could reasonably be expected to
have liability under Title IV of ERISA.
"Press Release"
means the press release to be made by or on behalf of the Company
announcing the terms of the Offer.
"Pro Rata Share"
means:
(a) for the purpose of determining a Lender's share in a Loan, the
proportion which its Commitment bears to the Total Commitments; and
(b) for any other purpose on a particular date:
(i) the proportion which a Lender's share of the Loans (if any)
bears to all the Loans;
(ii) if there is no Loan outstanding on that date, the proportion
which its Commitment bears to the Total Commitments on that
date; and
(iii) if the Total Commitments have been cancelled, the proportion
which its Commitments bore to the Total Commitments
immediately before being cancelled,
"Rate Fixing Day"
means:
(a) the first day of a Term for a Loan denominated in Sterling;
(b) the second Business Day before the first day of a Term for a Loan
denominated in any other currency,
or such other day as the Facility Agent determines is generally treated as
the rate fixing day by market practice in the relevant interbank market.
"Reference Banks"
means the London branch of each of The Chase Manhattan Bank, BNP Paribas
and Citibank, N.A. and any other bank or financial institution appointed as
such by the Facility Agent under this Agreement.
"Regulation U"
means regulation U of the Board of Governors of the United States Federal
Reserve System.
"Regulation X"
means regulation X of the Board of Governors of the United States Federal
Reserve System.
12
"Repeating Representations"
means the representations which are deemed to be repeated under this
Agreement.
"Request"
means a request for a Loan, substantially in the form of Schedule 3 (Form
of Request).
"Revolving Credit Facility"
means the revolving credit facility made available under this Agreement.
"Revolving Credit Loan"
means a Loan under the Revolving Credit Facility.
"Rollover Loan"
means one or more Revolving Credit Loans:
(a) to be made on the same day that a maturing Revolving Credit Loan is
due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Revolving Credit Loan;
(c) in the same currency as the maturing Revolving Credit Loan; and
(d) to be made to the same Borrower for the purpose of refinancing a
maturing Revolving Credit Loan.
"Screen Rate"
means:
(a) for LIBOR, the British Bankers Association Interest Settlement Rate
(if any); and
(b) for EURIBOR, the percentage rate per annum determined by the Banking
Federation of the European Union,
for the relevant currency and Term displayed on the appropriate page of the
Telerate screen selected by the Facility Agent. If the relevant page is
replaced or the service ceases to be available, the Facility Agent (after
consultation with the Company and the Lenders) may specify another page or
service displaying the appropriate rate.
"Security Interest"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having a similar
effect.
"Shareholders' Funds"
means, for a Borrower, the aggregate of:
13
(a) the amount for the time being paid up or credited as being paid up on
the issued share capital of that Borrower;
(b) the reserves of that Borrower (including any share premium accounts
and any capital reserves); and
(c) the consolidated retained earnings of that Borrower (less any amount
standing to the debit of the consolidated profit and loss account of
that Borrower),
less any amount included in the above which is attributable to equity
interests of minority shareholders, all as calculated in accordance with
accounting principles or standards generally accepted in its jurisdiction
of incorporation, consistently applied.
"Schlumberger Investments"
means Schlumberger Investments, a company incorporated in England with
registered number 4157867.
"Shares"
means all the issued shares in the capital of the Target (including any
shares of the Target issued or to be issued whilst the Offer remains open
for acceptance).
"Sisa"
means Schlumberger Industries S.A., a company incorporated in France with
registered number B 542 062 120 RCS Nanterre.
"Subordination Agreement"
means a Subordination Agreement substantially in the form of Schedule 11.
"Subordinated Debt"
means Financial Indebtedness of the relevant Borrower which has been
subordinated substantially on the terms set out in a duly executed
Subordination Agreement.
"Subsidiary"
means an entity of which a person has direct or indirect control or
owns directly or indirectly more than 50% of the voting capital or similar
right of ownership and "CONTROL" for this purpose means the power to direct
the management and the policies of the entity whether through the ownership
of voting capital or by contract.
"Syndication"
means general syndication of the Facility by the Arrangers.
"Target"
means SEMA plc.
14
"TARGET Day"
means a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer payment system is open for the settlement of
payments in euro.
"Target Group"
means the Target and its Subsidiaries.
"Tax"
means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any related penalty or interest).
"Tax Deduction"
means a deduction or withholding for or on account of Tax from a payment
under a Finance Document.
"Tax Payment"
means a payment made by an Obligor to a Finance Party in any way relating
to a Tax Deduction or under any indemnity given by that Obligor in respect
of Tax under any Finance Document.
"Term"
means each period determined under this Agreement by reference to which
interest on a Loan or an overdue amount is calculated.
"Term Date"
means the earlier of:
(a) if the Unconditional Date has not then occurred, the date falling 130
days after the date of the announcement of the Offer;
(b) the date upon which the Offer is terminated or withdrawn; or
(c) the date falling 30 days prior to the Initial Final Maturity Date.
"Term Loan"
means a Loan drawn down after the Term-out Date.
"Term-out Date"
means the date of the exercise of the Term-out Option.
"Term-out Option"
means the option specified in Clause 6.5 (Term-out Option).
15
"Total Commitments"
means the Commitments of all the Lenders.
"Transfer Certificate"
means a certificate, substantially in the form of Schedule 5 (Form of
Transfer Certificate), with such amendments as the Facility Agent may
approve or reasonably require or any other form agreed between the Facility
Agent and the Company.
"Unconditional Date"
means the date on which the Offer is declared unconditional by (or on
behalf of) the Company in all respects.
"U.K."
means the United Kingdom.
"Unfunded Liabilities"
means with respect to any Plan at any time, the amount (if any) by which:
(a) the value of all benefit liabilities under that Plan, determined on a
plan termination basis using the assumptions used for funding the Plan
pursuant to Section 412 of the Internal Revenue Code; exceeds
(b) the fair market value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but unpaid
contributions),
all as determined by the Plan actuary as of the Plan's then most
recent valuation date.
"U.S.A."
means the United States of America.
"Utilisation Date"
means each date on which the Facility is utilised.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an "amendment" includes a supplement, novation, restatement or re-
enactment and "amended" will be construed accordingly;
"assets" includes present and future properties, revenues and rights
of every description;
an "authorisation" includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or notarisation;
16
"disposal" means a sale, transfer, grant, lease or other disposal,
whether voluntary or involuntary, and "dispose" will be construed
accordingly;
"indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money;
a "person" includes any individual, company, corporation,
unincorporated association or body (including a partnership, trust,
joint venture or consortium), government, state, agency,
organisation or other entity whether or not having separate legal
personality;
a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but, if
not having the force of law, being of a type with which any person
to which it applies is accustomed to comply) of any governmental,
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ii) a currency is a reference to the lawful currency for the time being
of the relevant country;
(iii) a Default being "outstanding" means that it has not been remedied or
waived;
(iv) a provision of law is a reference to that provision as extended,
applied, amended or re-enacted and includes any subordinate
legislation;
(v) a Clause, a Subclause or a Schedule is a reference to a clause or
subclause of, or a schedule to, this Agreement;
(vi) a person includes its successors in title, permitted assigns and
permitted transferees;
(vii) a Finance Document or another document is a reference to that
Finance Document or other document as amended; and
(viii) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a reference to a "month" or "months"
is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month or
the calendar month in which it is to end, except that:
(i) if the numerically corresponding day is not a Business Day, the
period will end on the next Business Day in that month (if there is
one) or the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month, that
period will end on the last Business Day in that month; and
(iii) notwithstanding sub-paragraph (i) above, a period which commences on
the last Business Day of a month will end on the last Business Day in
the next month or the calendar month in which it is to end, as
appropriate.
(c) (i) Unless expressly provided to the contrary in a Finance Document,
a person who is not a party to a Finance Document may not enforce any
of its terms under the Contracts (Rights of Third Parties) Xxx 0000.
17
(ii) Notwithstanding any term of any Finance Document, the consent of any
third party is not required for any variation (including any release
or compromise of any liability under) or termination of that Finance
Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has ceased
to be a Party under this Agreement;
(ii) an amount in euro is payable only in the euro unit;
(iii) a term used in any other Finance Document or in any notice given in
connection with any Finance Document has the same meaning in that
Finance Document or notice as in this Agreement;
(iv) if there is an inconsistency between this Agreement and any other
Finance Document this Agreement will prevail;
(v) any obligation of an Obligor under the Finance Documents which is
not a payment obligation remains in force for so long as any payment
obligation is or may be outstanding under the Finance Documents; and
(e) the headings in this Agreement do not affect its interpretation.
1.3 French Terms
In this Agreement, a reference to:
(a) a "winding up, administration or dissolution" means, in respect of
an Obligor incorporated in France only, a redressement judiciaire,
cession totale de l'enterprise or liquidation judiciaire under
Articles L.620-1 et seq. of the French Commercial Code;
(b) a "composition, assignment or similar arrangement with any creditor"
includes a reglement amiable under Articles L.611-3 et seq. of the
French Commercial Code but excludes any step taken under Article
L.611-2;
(c) a "compulsory manager, receiver, administrator" includes an
administrateur judiciaire, administrateur provisoire or mandataire
liquidateur;
(d) a "lease" includes an "operation de credit bail";
(e) a "reconstruction" includes any contribution of part of its business
in consideration of shares (apport partiel d'actifs) and any
demerger (scisson) implemented in accordance with Articles L.236-1
to L236-24 of the French Commercial Code;
(f) a "Security interest" includes any type of security (surete reelle)
and transfer by way of security; and
(g) a person being "unable to pay its debts" includes that person being
in a state of cessation des paiements.
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2. FACILITY
2.1 Facility
Subject to the terms of this Agreement, the Lenders make available to the
Borrowers a revolving credit facility (with a term out option) in an
aggregate amount equal to the Total Commitments.
2.2 Nature of a Finance Party's rights and obligations
Unless otherwise agreed by all the Finance Parties:
(a) the obligations of a Finance Party under the Finance Documents are
several;
(b) failure by a Finance Party to perform its obligations does not affect
the obligations of any other Party under the Finance Documents;
(c) no Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents;
(d) the rights of a Finance Party under the Finance Documents are separate
and independent rights;
(e) a debt arising under the Finance Documents to a Finance Party is a
separate and independent debt; and
(f) a Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.3 Nature of Borrower's rights and obligations
Unless otherwise agreed by the Company:
(a) the obligations of a Borrower under the Finance Documents are several;
and
(b) failure by a Borrower to perform its obligations does not affect the
obligations of any other Party under the Finance Documents.
3. PURPOSE
3.1 Loans
Each Loan may be used for:
(a) financing or refinancing:
(i) all or part of the consideration in respect of the Offer;
(ii) any fees and expenses in relation to the Offer;
(iii) any borrowings of the Target or its Subsidiaries which are
outstanding on the Unconditional Date;
19
(iv) Market Purchases; and/or
(v) intra-Group indebtedness incurred to finance Market Purchases.
(b) general corporate purposes of the Company and the Original Borrowers
(including any direct or indirect subscription for equity in
Schlumberger Investments),
provided that no part of a Loan may be used, directly indirectly or
ultimately to finance the purchase of the ADRs.
3.2 No obligation to monitor
No Finance Party is bound to monitor or verify the utilisation of the
Facility.
4. THE OFFER
4.1 Defined terms
In this Subclause:
"Certain Funds Period"
means the period beginning on the date of the Press Release and ending on
the earlier of:
(a) if no section 429 Notice has been given, the date falling four months
after the date of posting of the Offer Document; or
(b) if the Company has given a Section 429 Notice, the later of:
(i) the first Business Day after the expiry of six weeks from the
date on which the final Section 429 Notice is given by the Company;
and
(ii) if an application to court is made under section 430C(1) of the
Companies Xxx 0000 in relation to any Section 429 Notice, the first
Business Day after the last day on which that application is disposed
of; and
(c) the date falling 6 months after the date of the issue of the Press
Release.
"Clean-up Period"
means the period commencing on the Unconditional Date and ending on
the date which is 90 days after the Unconditional Date.
"Code"
means the City Code on Takeovers and Mergers.
"Major Breach"
means a breach of:
(a) Clause 19.4 (Pari passu);
20
(b) Clause 19.5 (Negative pledge);
(c) Clause 19.6 (Transactions similar to security);
(d) Clause 19.7 (Disposals); or
(e) Clause 19.9 (Mergers).
"Major Default"
means any of the following Events of Default:
(a) Clause 20.2 (Non-payment);
(b) Clause 20.3 (Breach of other obligations) but only insofar as it
relates to a Major Breach;
(c) Clause 20.4 (Misrepresentation) but only insofar as it relates to a
Major Representation;
(d) Clauses 20.6 (Insolvency) and 20.7 (Insolvency proceedings) but only
as it relates to an Obligor;
(e) Clause 20.10 (Effectiveness of Finance Documents); or
(f) Clause 20.11 (a) (Ownership of the Obligors).
"Major Representation"
means any of the following representations contained in this
Agreement:
(a) 17.2(a) (Status);
(b) 17.3 (Powers and authority);
(c) 17.4 (Legal validity); or
(d) 17.5 (Non conflict).
"Market Purchases"
any on-market or off-market purchases of the Shares outside the Offer.
"Offer Loan"
means any Loan the direct or indirect purpose of which is to finance
the acquisition of Shares under the Offer, including under the procedures
in Sections 428-430 of the Companies Xxx 0000.
"Panel"
means the Panel on Takeovers and Mergers.
21
"Section 429 Notice"
means a notice under Section 429(2) of the Companies Xxx 0000 to a
shareholder of the Target who has not accepted the Offer compulsorily
acquiring the Shares of that shareholder.
4.2 Press Releases
Unless required by the Code or any law or regulation, the Company must not
make any statement or announcement (other than the Press Release)
containing any information or statement concerning the Finance Documents or
the Finance Parties without the prior approval of the Arrangers. The
approval of the Arrangers must not be unreasonably withheld or delayed.
4.3 Certain Funds
(a) Notwithstanding any term of this Agreement, during the Certain Funds Period
no Lender is entitled to:
(i) refuse to participate in any Offer Loan;
(ii) cancel a Commitment;
(iii) exercise any right of rescission, set off or similar right or remedy
which it may have in relation to any Offer Loan; or
(iv) accelerate repayment of any Offer Loan,
except as provided below in this Subclause.
(b) Paragraph (a) does not apply if the entitlement arises because:
(i) the Company has not delivered all of the documents required under
this Clause or Part I of Schedule 2 (Conditions precedent
documents);
(ii) a Major Representation is not accurate in all material respects or
will not be accurate in all material respects immediately after the
Offer Loan is made;
(iii) a Major Default is outstanding or will result from the making of the
Offer Loan;
(iv) it is unlawful for the Lender to perform any of its obligations
under the Finance Documents; or
(v) in the case of an Offer Loan to be made to a Borrower other than the
Company, that Borrower is not, or would not be after the borrowing
of that Loan, in compliance with its obligations under Clause 19.12
(Borrower financial condition).
(c) Nothing in this Subclause will affect the rights of any Finance Party in
respect of any outstanding Default upon expiry of the Certain Funds Period
irrespective of whether that Default occurred during the Certain Funds
Period or not.
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4.4 Clean-up Period
Notwithstanding any term of this Agreement, during the Clean-Up Period
references to the Group or any member of the Group in the following
Subclauses will not include any member of the Target Group:
(a) Clause 17.2(b) (Status);
(b) Clause 19.2 (Authorisations);
(c) Clause 19.3 (Compliance with laws);
(d) Clause 19.5 (Negative pledge);
(e) Clause 19.6 (Transactions similar to security);
(f) Clause 19.7 (Disposals);
(g) Clause 19.11 (Environmental matters);
(h) Clause 19.12 (Insurance); and
(i) Clause 20.5 (Cross-acceleration).
4.5 Compliance
Each Obligor must comply in all material respects with the Financial
Services Xxx 0000, the Companies Xxx 0000 and all other laws and
regulations material in the context of the Offer, including the Code and
any relevant laws and regulations in France and U.S.A.
4.6 Information
The Company must promptly supply to the Facility Agent:
(a) copies of all documents, notices or announcements publicly issued by
it in relation to the Offer; and
(b) any other information regarding the Offer, including as to level of
acceptances, as the Facility Agent may reasonably request,
in each case to the extent permitted by law and by the Panel.
4.7 Section 429 Notices
The Company must give Section 429 Notices promptly upon the conditions
contained in the Companies Xxx 0000 for the giving of those notices being
satisfied.
4.8 Level of acceptances
The Company must not declare the Offer unconditional in any respect unless
it would result in the Company owning beneficially more than fifty per
cent. of the issued voting share capital of the Target.
23
4.9 Offer Indemnity
(a) The Company must indemnify each Finance Party against any loss or liability
which that Finance Party incurs as a consequence of any litigation
proceeding, arising, pending or threatened against that Finance Party in
connection with or arising out of any Finance Document or the Offer
(whether or not made), unless it is caused by the gross negligence or
wilful misconduct of that Finance Party.
(b) Each Finance Party must notify the Company of any claim or potential claim
under this Clause promptly upon becoming aware of it. A Finance Party will
not settle any claim, without prior consultation with the Company and, to
the extent it does not prejudice that Finance Party, taking into account
the Company's interests.
5. CONDITIONS PRECEDENT
5.1 Conditions precedent documents
No Loan may be made until the Facility Agent has notified the Company and
the Lenders that it has received:
(a) all of the documents and evidence set out in Part I of Schedule 2
(Conditions precedent documents); and
(b) in the case of Loans to SISA only, a resolution of the shareholders of
SISA ratifying execution of this Agreement by SISA,
each of which, unless marked to the contrary in that Schedule, must be in
form and substance satisfactory to the Facility Agent (acting reasonably).
The Facility Agent must give this notification as soon as reasonably
practicable.
5.2 Further conditions precedent
The obligations of each Lender to participate in any Loan and the exercise
of the Term-out Option are subject to the further conditions precedent that
on both the date of the Request and the Utilisation Date for that Loan or
on the Term-out Date:
(a) the Repeating Representations are accurate in all material respects;
and
(b) no Default or, in the case of a Rollover Loan, no Event of Default is
outstanding or would result from the Loan.
5.3 Maximum number
Unless the Facility Agent agrees, a Loan may not be made if, as a result,
there would be more than 15 Loans outstanding.
6. UTILISATION
6.1 Giving of Requests
(a) A Borrower may borrow a Loan by giving to the Facility Agent a duly
completed Request.
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(b) Unless the Facility Agent otherwise agrees, the latest time for receipt by
the Facility Agent of a duly completed Request is 11.00 a.m. one Business
Day before the Rate Fixing Day for the proposed borrowing.
(c) Each Request is irrevocable.
6.2 Completion of Requests
A Request will not be regarded as having been duly completed unless:
(a) it identifies the Borrower;
(b) the Utilisation Date is a Business Day falling within the Availability
Period; and
(c) the proposed currency, amount and Term comply with this Agreement.
Only one Loan may be requested in a Request.
6.3 Amount of Loan
(a) Except as provided below, the amount of the Loan must be a minimum of
US$5,000,000, (Pounds)3,000,000 or (Euro)5,000,000 or its equivalent in
accordance with Clause 7 (Optional Currencies) and an integral multiple of
1,000,000 units of that currency.
(b) The amount of the Loan may also be the balance of the relevant undrawn
Total Commitments or the relevant Borrower Sub-limit or such other amount
as the Facility Agent or the Lenders may agree.
(c) The amount of each Lender's share of the Loan will be its Pro Rata Share on
the proposed Utilisation Date.
6.4 Advance of Loan
(a) The Facility Agent must promptly notify each Lender of the details of the
requested Loan and the amount of its share in that Loan.
(b) No Lender is obliged to participate in a Loan if as a result:
(i) its share in the Loans would exceed its Commitment;
(ii) the Loans would exceed the Total Commitments; or
(iii) the aggregate Loans outstanding to the relevant Borrower would
exceed any Borrower Sub-limit for that Borrower.
(c) If the conditions set out in this Agreement have been met, each Lender must
make its share in the Loan available to the Facility Agent for the relevant
Borrower on the Utilisation Date.
6.5 Term-out Option
(a) The Company may by notice to the Facility Agent at any time before the date
falling 30 days before the Initial Final Maturity Date opt to convert the
Revolving Credit Facility into a term
25
loan facility. The giving of this notice constitutes the exercise of the
Term-out Option by the Company.
(b) With effect from the Term-out Date:
(i) Loans may continue to be borrowed under the Revolving Credit
Facility for the remainder of the Availability Period;
(ii) any Loan borrowed after that date will be a Term Loan;
(iii) the first Term for any such Loan may overrun the Initial Final
Maturity Date;
(iv) any Revolving Credit Loan outstanding on the date of the exercise of
the Term-out Option must be repaid on its Maturity Date but may be
re-borrowed, subject to the terms of this Agreement, as a Term Loan;
and
(v) the unutilised amount of the Total Commitments will be automatically
cancelled at close of business on the Initial Final Maturity Date.
(c) The Company must pay to the Facility Agent for the Lenders on the Term-out
Date a fee equal to 0.05 per cent. flat of the Total Commitments on that
date.
7. OPTIONAL CURRENCIES
7.1 General
In this Clause:
"Agent's Spot Rate of Exchange"
means the Facility Agent's spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with US Dollars at
or about 11.00 a.m. on a particular day.
"US Dollar Amount"
of a Loan or part of a Loan means:
(a) if the Loan is denominated in US Dollars, its amount;
(b) if the Loan is a Term Loan denominated in an Optional Currency, its
Original US Dollar Amount; or
(c) in the case of any other Loan, if the Loan is denominated in an
Optional Currency for a Term, its equivalent in US Dollars calculated
on the basis of the Agent's Spot Rate of Exchange one Business Day
before the Rate Fixing Day for that Term.
"Optional Currency"
means any currency (other than US Dollars) in which a Loan may be
denominated under this Agreement.
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"Original US Dollar Amount"
means, for a Term Loan denominated in an Optional Currency, the equivalent
in US Dollars if it had first been drawn down and had remained denominated
in US Dollars, adjusted to reflect any repayment, prepayment, consolidation
or splitting of that Term Loan.
7.2 Selection
(a) A Borrower must select the currency of a Loan in its Request.
(b) (i) The amount of a Revolving Credit Loan requested must be a minimum
amount of the equivalent of US$5,000,000, (Pounds)3,000,000 or
e5,000,000 and an integral multiple of 1,000,000 units of that
currency.
(ii) The amount of a Term Loan requested must be a minimum Original US
Dollar Amount of US$5,000,000, (Pounds)3,000,000 or e5,000,000 and an
integral multiple of an Original US Dollar Amount of US$1,000,000.
The amount of a Term Loan in an Optional Currency will be calculated
by reference to its Original US Dollar Amount.
(c) Unless the Facility Agent otherwise agrees, the Loans may not be
denominated at any one time in more than 4 currencies.
7.3 Conditions relating to Optional Currencies
A Loan may be denominated in an Optional Currency for a Term if that
Optional Currency is euros, Sterling or is any other currency which is
readily available in the amount required and freely convertible into US
Dollars in the relevant interbank market on the Rate Fixing Day and the
first day of that Term.
7.4 Revocation of currency
(a) Notwithstanding any other term of this Agreement, if before 9.30 a.m. on
any Rate Fixing Day the Facility Agent receives notice from a Lender that:
(i) the Optional Currency requested is not readily available to it in the
relevant interbank market in the amount and for the period required;
or
(ii) participating in a Loan in the proposed Optional Currency might
contravene any law or regulation applicable to it,
the Facility Agent must give notice to the Company to that effect promptly
and in any event before 11.00 a.m. on that day.
(b) In this event:
(i) that Lender must participate in the Loan in US Dollars; and
(ii) the share of that Lender in the Loan and any other similarly affected
Lender(s) will be treated as a separate Loan denominated in US Dollars
during that Term.
(c) Any part of a Loan treated as a separate Loan under this Subclause will not
be taken into account for the purposes of any limit on the number of Loans
or currencies outstanding at any one time.
27
(d) A Revolving Credit Loan will still be treated as a Rollover Loan if it is
not denominated in the same currency as the maturing Revolving Credit Loan
by reason only of the operation of this Subclause.
7.5 Optional Currency equivalents
(a) The equivalent in US Dollars of a Loan or part of a Loan in an Optional
Currency for the purposes of calculating:
(i) whether any limit under this Agreement has been exceeded;
(ii) the amount of a Loan;
(iii) the share of a Lender in a Loan;
(iv) the amount of any repayment of a Loan; or
(v) the undrawn amount of a Lender's Commitment,
is its US Dollar Amount.
(b) The rate of exchange to be used for calculating the amount in US Dollars of
any repayment or prepayment of a Term Loan in an Optional Currency is that
last used for determining the amount of the Term Loan in that Optional
Currency.
7.6 Term Loans - change of currency
(a) A Term Loan will remain denominated in the same currency through successive
Terms, unless the currency is changed under paragraph (c) below.
(b) A Borrower may change the currency of a Term Loan denominated in Dollars or
an Optional Currency to Dollars or a different Optional Currency with
effect from the start of a Term by giving notice to the Facility Agent by
9.00 a.m. three Business Days before the first day of that Term. The Term
Loan will remain denominated in that currency until it is changed again
under this Subclause.
(c) If a Term Loan is to be denominated in different currencies during
successive Terms:
(i) a Borrower must repay that Term Loan on the last day of its current
Term in the currency in which it is then denominated (the "old
currency"); and
(ii) the Lenders must, subject to the terms of this Agreement, re-advance
the Term Loan in the currency in which the relevant Borrower
requires the Term Loan to be denominated for the next Term (the "new
currency").
The amount of the Loan in the new currency will be calculated by reference
to its Original US Dollar Amount.
(d) Alternatively, if the Facility Agent and the relevant Borrower agree, the
Facility Agent may apply the amount (or so much of that amount as is
necessary) of the Term Loan in the new currency to purchase an amount of
the old currency sufficient to discharge the obligation of the relevant
Borrower to repay the Term Loan in the old currency.
28
(e) The Facility Agent must apply any amount of the old currency purchased
under paragraph (d) above towards repaying the Term Loan in the old
currency. The Facility Agent will promptly notify the relevant Borrower if
there is a shortfall. In this event, the relevant Borrower must pay to the
Facility Agent on the date the Term Loan is due to be repaid in the old
currency an amount in the old currency equal to the shortfall.
(f) If the day on which the old currency is due to be repaid is not also a
Business Day for the new currency:
(i) the Facility Agent must notify the Company and the Lenders promptly;
(ii) the Term Loan will remain in the old currency until the next day
which is a Business Day for both the old and the new currencies; and
(iii) during this period, the Term Loan will have Terms running from one
Business Day to the next Business Day.
(g) The Company must indemnify the Facility Agent against any loss or liability
incurred by the Facility Agent as a result of any foreign exchange contract
entered into for the purpose of this Clause.
7.7 Term Loans - continuing in same Optional Currency
(a) If a Term Loan is to be denominated in the same Optional Currency during
two successive Terms, the Facility Agent must calculate the amount of the
Term Loan in the Optional Currency for the second of those Terms.
(b) The amount of the Term Loan in the Optional Currency for the second Term
will be the amount determined by notionally converting into that Optional
Currency the Original US Dollar Amount of the Term Loan on the basis of the
Agent's Spot Rate of Exchange one Business Day before the Rate Fixing Day
for that Term.
(c) If the amount calculated is less than the existing amount of that Term Loan
in the Optional Currency during the current Term, the relevant Borrower
must pay on the last day of the current Term an amount equal to the
difference.
(d) If the amount calculated is more than the existing amount of that Term Loan
in the Optional Currency during the current Term, each Lender must on the
last day of the current Term pay its Pro Rata Share of the difference.
(e) If the calculation made by the Facility Agent under paragraph (a) above
shows that the amount of the Term Loan in the Optional Currency has
increased or decreased by less than five per cent., no payment is required
under paragraph (c) or (d) above.
7.8 Notification
The Facility Agent must notify the Lenders and the Company of the relevant
US Dollar Amount (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
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8. REPAYMENT
8.1 Repayment of Term Loans
Each Borrower must repay the Term Loans made to it in full on the Final
Maturity Date.
8.2 Repayment of Revolving Credit Loans
(a) Each Borrower must repay each Revolving Credit Loan made to it in full on
its Maturity Date.
(b) Subject to the other terms of this Agreement, any amounts repaid under
paragraph (a) above may be re-borrowed.
9. PREPAYMENT AND CANCELLATION
9.1 Mandatory Prepayment - illegality
(a) A Lender must notify the Company through the Facility Agent promptly if it
becomes aware that it is unlawful in any jurisdiction for that Lender to
perform any of its obligations under a Finance Document or to fund or
maintain its share in any Loan.
(b) After notification under paragraph (a) above:
(i) each Borrower must prepay the share of that Lender in each Loan made
to it on the date specified in paragraph (c) below; and
(ii) the Commitments of that Lender will be immediately cancelled.
(c) The date for prepayment of a Lender's share in a Loan will be:
(i) no later than the fifth Business Day following receipt by the Company
of notice from the Lender under paragraph (a) above; or
(ii) if later, the latest date allowed by the relevant law.
9.2 Mandatory prepayment - capital market issues
(a) Each Obligor must apply the net proceeds of any capital market issue of
securities made by it or on its behalf after the date of this Agreement
towards prepayment of the Loans.
(b) Any prepayment under paragraph (a) will be made on the last day(s) of the
then current Terms of the Loans.
(c) The amount of the Total Commitments will be reduced by an amount equal to
the prepayment.
9.3 Mandatory prepayment and cancellation in relation to a single borrower.
If it becomes unlawful for a Borrower to perform its obligations under
Clause 13.2 (Tax gross-up) or under an equivalent provision of any Finance
Document (the "Relevant Obligations"):
30
(a) the Company must notify the Facility Agent promptly upon becoming
aware of that event;
(b) the Facility Agent must promptly notify the Lenders;
(c) the relevant Borrower must repay the Loans made to it, together with
all accrued interest on those Loans and all other amounts payable by
that Borrower under the Finance Documents on the earlier of:
(i) the last day of the then current Term of each Loan made to that
Borrower; and
(ii) the last day of any applicable grace period permitted by law;
and
(d) for so long as it remains unlawful for that Borrower to perform the
Relevant Obligations, the relevant Borrower will not be entitled to
borrow any further Loans.
9.4 Voluntary prepayment
(a) Subject to paragraph (b) below, any Obligor may, by giving not less than 5
Business Days' prior notice to the Facility Agent, prepay any Loan at any
time in whole or in part.
(b) A prepayment of part of a Loan must be in a minimum amount of
US$5,000,000, (Pounds)3,000,000 or (Euro)5,000,000 (or its equivalent in
other currencies) and an integral multiple of US$1,000,000,
(Pounds)1,000,000 or (Euro)1,000,000 (or its equivalent in other
currencies).
9.5 Automatic cancellation
The undrawn Commitments of each Lender will be automatically cancelled at
the close of business on the last day of the Availability Period.
9.6 Voluntary cancellation
(a) The Company may, by giving not less than 2 Business Days' prior notice to
the Facility Agent, cancel without penalty the unutilised amount of the
Total Commitments in whole or in part.
(b) Partial cancellation of the Total Commitments must be in a minimum of
US$5,000,000 (or its equivalent in other currencies) and an integral
multiple of US$1,000,000 (or its equivalent in other currencies).
(c) Any cancellation in part will be applied against the relevant Commitment of
each Lender pro rata.
9.7 Involuntary prepayment and cancellation
(a) If an Obligor is, or will be, required to pay to a Lender a Tax Payment or
an Increased Cost, the Company may, while the requirement continues, give
notice to the Facility Agent requesting prepayment and cancellation in
respect of that Lender.
(b) After notification under paragraph (a) above:
31
(i) each Borrower must repay or prepay that Lender's share in each Loan
made to it on the date specified in paragraph (c) below; and
(ii) the Commitments of that Lender will be immediately cancelled.
(c) The date for prepayment of a Lender's share in a Loan will be the last day
of the current Term for that Loan or, if earlier, the date specified by the
Company in its notification.
9.8 Partial prepayment of Term Loans
No amount of a Term Loan prepaid under this Agreement may subsequently be
re-borrowed.
9.9 Re-borrowing of Revolving Credit Loans
Any voluntary prepayment of a Revolving Credit Loan may be re-borrowed on
the terms of this Agreement. Any mandatory or involuntary prepayment of a
Revolving Credit Loan may not be re-borrowed.
9.10 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected Loans
and Commitments. The Facility Agent must notify the Lenders promptly of
receipt of any such notice.
(b) All prepayments under this Agreement must be made with accrued interest on
the amount prepaid. No premium or penalty is payable in respect of any
prepayment except for Break Costs.
(c) The Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary cancellation.
(d) No prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
10. INTEREST
10.1 Calculation of interest
The rate of interest on each Loan for each Term is the percentage rate per
annum equal to the aggregate of the applicable:
(a) Margin;
(b) IBOR; and
(c) Mandatory Cost.
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10.2 Payment of interest
Except where it is provided to the contrary in this Agreement, each
Borrower must pay accrued interest on each Loan made to it on the last day
of each Term and also, if the Term is longer than six months, on the dates
falling at six-monthly intervals after the first day of that Term.
10.3 Interest on overdue amounts
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it must immediately on demand by the Facility Agent pay interest
on the overdue amount from its due date up to the date of actual payment,
both before, on and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the
Facility Agent to be one per cent. per annum above the rate which would
have been payable if the overdue amount had, during the period of non-
payment, constituted a Loan in the currency of the overdue amount. For
this purpose, the Facility Agent may (acting reasonably):
(i) select successive Terms of any duration of up to three months; and
(ii) determine the appropriate Rate Fixing Day for that Term.
(c) Notwithstanding paragraph (b) above, if the overdue amount is a principal
amount of a Loan and becomes due and payable prior to the last day of its
current Term, then:
(i) the first Term for that overdue amount will be the unexpired portion
of that Term; and
(ii) the rate of interest on the overdue amount for that first Term will
be one per cent. per annum above the rate then payable on that Loan.
After the expiry of the first Term for that overdue amount, the rate on the
overdue amount will be calculated in accordance with paragraph (b) above.
(d) Interest (if unpaid) on an overdue amount will be compounded with that
overdue amount at the end of each of its Terms but will remain immediately
due and payable.
10.4 Notification of rates of interest
The Facility Agent must promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
10.5 Effective Global Rate (Taux Effectif Global)
(a) For the purposes of Articles L.313-1, L313-2, R313-1 and R313-2 of the Code
de la Consommation, each Party acknowledges that, by virtue of certain
characteristics of this Agreement the taux effectif global cannot be
calculated exactly on the date of this Agreement. However, each Original
Borrower incorporated in France acknowledges that it has received from the
Facility Agent a letter containing an indicative calculation of the taux
effectif global substantially in the form of Schedule 9 based on examples
calculated on assumptions as to the taux de periode and duree de periode
set out in that letter.
(b) Each Party acknowledges that the letter referred to in paragraph (a) forms
part of this Agreement.
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11. TERMS
11.1 Selection - Term Loans
(a) Each Term Loan has successive Terms.
(b) A Borrower must select the first Term for a Term Loan in the Request for
that Loan, and must select each subsequent Term in an irrevocable notice
received by the Facility Agent not later than 11.00 a.m. on the Business
Day before the Rate Fixing Day for that Term. Each Term for a Term Loan
will start on its Utilisation Date or on the expiry of its preceding Term.
(c) If a Borrower fails to select a Term for an outstanding Term Loan under
paragraph (b) above, that Term will, subject to the other provisions of
this Clause, be three months.
(d) Subject to the following provisions of this Clause, each Term for a Term
Loan will be one, two, three or six months or any other period agreed by
the Company and the Lenders.
11.2 Selection - Revolving Credit Loans
(a) Each Revolving Credit Loan has one Term only.
(b) A Borrower must select the Term for a Revolving Credit Loan in the relevant
Request.
(c) Subject to the following provisions of this Clause, each Term for a
Revolving Credit Loan will be one, two, three or six months or any other
period agreed by the Company and the Lenders.
11.3 Syndication
Until the earlier of:
(a) completion of Syndication; and
(b) the date falling 120 days after the date of this Agreement,
each Term must be a period of one month or any other period agreed by the
Facility Agent.
11.4 No overrunning the Final Maturity Date
If a Term would otherwise overrun the Final Maturity Date, it will be
shortened so that it ends on the Final Maturity Date.
11.5 Other adjustments
The Facility Agent and the Company may enter into such other arrangements
as they may agree for the adjustment of Terms and the consolidation and/or
splitting of Loans.
11.6 Notification
The Facility Agent must notify the relevant Borrower and the Lenders of the
duration of each Term promptly after ascertaining its duration.
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12. MARKET DISRUPTION
12.1 Failure of a Reference Bank to supply a rate
If IBOR is to be calculated by reference to the Reference Banks but a
Reference Bank does not supply a rate by 12.00 noon on a Rate Fixing Day,
the applicable IBOR will, subject as provided below, be calculated on the
basis of the rates of the remaining Reference Banks.
12.2 Market disruption
(a) In this Clause, each of the following events is a "market disruption
event":
(i) IBOR is to be calculated by reference to the Reference Banks but no,
or only one, Reference Bank supplies a rate by 12.00 noon on the
Rate Fixing Day; or
(ii) the Facility Agent receives by close of business on the Rate Fixing
Day notification from Lenders whose shares in the relevant Loan
exceed 35 per cent. of that Loan that the cost to them of obtaining
matching deposits in the relevant interbank market is in excess of
IBOR for the relevant Term.
(b) The Facility Agent must promptly notify the Company and the Lenders of a
market disruption event.
(c) After notification under paragraph (b) above, the rate of interest on each
Lender's share in the affected Loan for the relevant Term will be the
aggregate of the applicable:
(i) Margin;
(ii) rate notified to the Facility Agent by that Lender as soon as
practicable to be that which expresses as a percentage rate per
annum the cost to that Lender of funding its share in that Loan from
whatever source it may reasonably select; and
(iii) Mandatory Cost.
12.3 Alternative basis of interest or funding
(a) If a market disruption event occurs and the Facility Agent or the Company
so requires, the Company and the Facility Agent must enter into
negotiations for a period of not more than 30 days with a view to agreeing
an alternative basis for determining the rate of interest and/or funding
for the affected Loan and any future Loan.
(b) Any alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the Parties.
13. TAXES
13.1 General
In this Clause:
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"French Lender"
means a Lender which, at the date it becomes a Party, is able to fulfil the
conditions imposed by French law for any sum payable by an Obligor which is
resident in France to the Facility Agent for the account of the Facility
Office of that Lender not to be subject to any withholding or deduction for
any Tax.
"French Qualifying Lender"
means a Lender which is:
(a) a French Lender; or
(b) a French Treaty Lender and, prior to the date on which that Lender
became a Party, the Company consented to that Lender becoming a Party.
The Company may withhold its consent to a French Treaty Lender becoming a
Party for any reason.
"French Treaty Lender"
means a Lender which is, on the date a payment of interest becomes due
under this Agreement:
(a) resident (as defined in the appropriate double taxation agreement) in
a country with which France has a double taxation agreement giving
residents of that country exemption from French taxation on interest;
and
(b) does not carry on business in France through a permanent
establishment.
"Qualifying Lender"
means a Lender which is both a French Qualifying Lender and a U.K.
Qualifying Lender.
"Tax Credit"
means a credit against any Tax or any relief or remission for Tax (or
its repayment).
"Treaty Lender"
means a French Treaty Lender or a U.K. Treaty Lender.
"U.K. Lender"
means a Lender which is within the charge to U.K. corporation tax in
respect of, and beneficially entitled to, a payment of interest on a Loan
made by a person that was a bank for the purposes of section 349 of the
Income and Corporation Taxes Act 1988 (as currently defined in section 840A
of the Income and Corporation Taxes Act) at the time the Loan was made.
"UK Qualifying Lender "
means a Lender which is:
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(a) a U.K. Lender; or
(b) a U.K. Treaty Lender and prior to the date on which that Lender became
a Party, the Company consented to that Lender becoming a Party.
The Company may withhold its consent to a U.K. Treaty Lender becoming
a Party for any reason.
"U.K. Treaty Lender"
means a Lender which is, on the date a payment of interest falls due
under this Agreement:
(a) resident (as defined in the appropriate double taxation agreement) in
a country with which the U.K. has a double taxation agreement giving
residents of that country exemption from U.K. taxation on interest;
and
(b) does not carry on a business in the U.K. through a permanent
establishment with which the payment is effectively connected.
13.2 Tax gross-up
(a) Each Obligor must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required by
law.
(b) If:
(i) a Lender is not, or ceases to be, a Qualifying Lender; or
(ii) an Obligor or a Lender is aware that an Obligor must make a Tax
Deduction (or that there is a change in the rate or the basis of a Tax
Deduction),
it must promptly notify the Facility Agent. The Facility Agent must then
promptly notify the affected Parties.
(c) Except as provided below, if a Tax Deduction is required by law to be made
by an Obligor or the Facility Agent, the amount of the payment due from the
Obligor will be increased to an amount which (after making the Tax
Deduction) leaves an amount equal to the payment which would have been due
if no Tax Deduction had been made.
(d) (i) Except as provided below, an Obligor resident for tax purposes in the
U.K. or France is not required to make an increased payment under
paragraph (c) above to a Lender that is not, or has ceased to be, a UK
Qualifying Lender or a French Qualifying Lender, as applicable, in
excess of the amount that the Obligor would have had to pay had the
Lender been, or not ceased to be, a Qualifying Lender or a French
Qualifying Lender, as applicable.
(ii) Sub-paragraph (i) above will not apply if the Lender was a Qualifying
Lender but has ceased to be a Qualifying Lender by reason of any
change after the date it became a Lender under this Agreement in (or
in the interpretation, administration, or application of) any law or
double taxation agreement or any published practice or concession of
any relevant taxing authority.
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(e) An Obligor resident for tax purposes in the U.K. or France is not required
to make an increased payment to a Lender under paragraph (c) above if that
Lender is, respectively, a U.K. Treaty Lender or a French Treaty Lender and
the Obligor making the payment is able to demonstrate that the Tax
Deduction would not have been required if the Lender had complied with its
obligations under paragraph (h) below.
(f) If an Obligor is required to make a Tax Deduction, that Obligor must make
the minimum Tax Deduction and must make any payment required in connection
with that Tax Deduction within the time allowed by law.
(g) Within 30 days of making either a Tax Deduction or a payment required in
connection with a Tax Deduction, the Obligor making that Tax Deduction or
payment must deliver to the Facility Agent for the relevant Finance Party
evidence satisfactory to that Finance Party (acting reasonably) that the
Tax Deduction has been made or (as applicable) the appropriate payment has
been paid to the relevant taxing authority.
(h) Each Treaty Lender must co-operate with each Obligor by using its
reasonable endeavours to complete any procedural formalities necessary for
that Obligor to obtain authorisation to make that payment without a Tax
Deduction.
13.3 Tax indemnity
(a) Except as provided below, the Company must indemnify a Finance Party
against any loss or liability which that Finance Party (in its absolute
discretion) determines will be or has been suffered (directly or
indirectly) by that Finance Party for or on account of Tax in relation to a
payment received or receivable (or any payment deemed to be received or
receivable) under a Finance Document.
(b) Paragraph (a) above does not apply to any Tax:
(i) assessed on a Finance Party under the laws of the jurisdiction in
which:
(A) that Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance Party is
treated as resident for tax purposes; or
(B) that Finance Party's Facility Office is located in respect of
amounts received or receivable in that jurisdiction, if that Tax
is imposed on or calculated by reference to the net income
received or receivable by that Finance Party or by such Facility
Office. However, any payment deemed to be received or receivable,
including any amount treated as income but not actually received
by the Finance Party, such as a Tax Deduction, will not be
treated as net income received or receivable for this purpose; or
(ii) compensated for under Clause 13.2 (Tax gross-up), or which would
have been compensated for but for an exception to that Clause.
(c) A Finance Party making, or intending to make, a claim under paragraph (a)
above must promptly notify the Company of the event which will give, or has
given, rise to the claim.
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13.4 Collecting Agent
(a) Unless a Lender notifies the Facility Agent to the contrary, each Lender
confirms to the Facility Agent on the date that it becomes a Lender that it
is beneficially entitled to its share in each Loan and its accrued interest
and is either:
(i) not resident for tax purposes in the U.K.; or
(ii) a bank for the purposes of section 349 of the Income and Corporation
Taxes Xxx 0000.
Each Lender must promptly notify the Facility Agent if there is any change
in its position from that set out in sub-paragraph (i) or (ii) above.
(b) An Obligor is not required to make a Tax Payment to that Lender as a result
of:
(i) that Lender not giving the confirmation referred to in paragraph (a)
above; or
(ii) the confirmation of that Lender being incorrect at the time it is
given,
unless this is caused by any change after the date of this Agreement in (or
in the interpretation, administration or application of) any law or double
taxation agreement or any published practice or concession of any relevant
taxing authority.
13.5 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party (in its
absolute discretion) determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) it has used that Tax Credit,
the Finance Party must pay an amount to the Obligor which that Finance
Party determines (in its absolute discretion) will leave it (after that
payment) in the same after-tax position as it would have been in if the Tax
Payment had not been made by the Obligor.
13.6 Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp
duty, registration or other similar Tax payable in connection with the
entry into, performance or enforcement of any Finance Document, except for
any such Tax payable in connection with the entry into of a Transfer
Certificate.
13.7 Value added taxes
(a) Any amount (including costs and expenses) payable under a Finance Document
by an Obligor is exclusive of any Tax (including value added tax) which
might be chargeable in connection with that amount. If any such Tax is
chargeable, the Obligor must pay to the Finance Party (in addition to and
at the same time as paying that amount) an amount equal to the amount of
that Tax.
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(b) The obligation of any Obligor under paragraph (a) above will be reduced to
the extent that the Finance Party is entitled to repayment or a credit in
respect of the relevant Tax.
14. INCREASED COSTS
14.1 Increased Costs
Except as provided below in this Clause, the Company must pay to a Finance
Party the amount of any Increased Cost incurred by that Finance Party or
any of its Affiliates as a result of:
(a) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(b) compliance with any law or regulation,
made after the date of this Agreement.
14.2 Exceptions
The Company need not make any payment for an Increased Cost to the extent
that the Increased Cost is:
(a) compensated for under another Clause or would have been but for an
exception to that Clause;
(b) attributable to a law or regulation with which it was required to
comply before the date of this Agreement;
(c) a tax on the overall net income of a Finance Party or any of its
Affiliates or of any permanent establishment;
(d) attributable to a Finance Party or its Affiliate wilfully failing
to comply with any law or regulation; or
(e) attributable to the period (if any) of six months after the
relevant Finance Party is or ought to have been aware of that
Increased Cost but before the date the Company received notice of
that Increased Cost.
14.3 Claims
A Finance Party intending to make a claim for an Increased Cost must notify
the Company promptly and in reasonable detail of the circumstances giving
rise to, and the amount of, the claim.
15. MITIGATION
15.1 Mitigation
(a) Each Finance Party must, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which result
or would result in:
(i) any Tax Payment or Increased Cost being payable to that Finance
Party; or
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(ii) that Finance Party being able to exercise any right of prepayment
and/or cancellation under this Agreement by reason of any
illegality,
including transferring its rights and obligations under the Finance
Documents to an Affiliate or changing its Facility Office.
(b) No Finance Party is obliged to take any step under paragraph (a) above
unless it is indemnified by the Company for all costs and expenses
reasonably incurred by it in taking that step.
(c) A Finance Party is not obliged to take any step under this Subclause if, in
the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.
15.2 Conduct of business by a Finance Party
No term of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it in respect of Tax
or the extent, order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (Tax or otherwise) or any computation in respect of
Tax.
16. PAYMENTS
16.1 Place
Unless a Finance Document specifies that payments under it are to be made
in another manner, all payments by a Party (other than the Facility Agent)
under the Finance Documents must be made to the Facility Agent to its
account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency; or
(b) in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Party for this purpose by not less than five
Business Days' prior notice.
16.2 Funds
Payments under the Finance Documents to the Facility Agent must be made for
value on the due date at such times and in such funds as the Facility Agent
may specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
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16.3 Distribution
(a) Each payment received by the Facility Agent under the Finance Documents for
another Party must, except as provided below, be made available by the
Facility Agent to that Party by payment (as soon as practicable after
receipt) to its account with such office or bank:
(i) in the principal financial centre of the country of the relevant
currency; or
(ii) in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Facility Agent for this purpose by not less than
five Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for an Obligor in or
towards payment (as soon as practicable after receipt) of any amount due
from that Obligor under the Finance Documents or in or towards the purchase
of any amount of any currency to be so applied.
(c) Where a sum is paid to the Facility Agent under this Agreement for another
Party, the Facility Agent is not obliged to pay that sum to that Party
until it has established that it has actually received it. However, the
Facility Agent may assume that the sum has been paid to it, and, in
reliance on that assumption, make available to that Party a corresponding
amount. If it transpires that the sum has not been received by the
Facility Agent, that Party must immediately on demand by the Facility Agent
refund any corresponding amount made available to it together with interest
on that amount from the date of payment to the date of receipt by the
Facility Agent at a rate calculated by the Facility Agent to reflect its
cost of funds.
16.4 Payments to and from SISA
(a) All payments in euros from the Facility Agent to SISA will be
made available by the Facility Agent to SISA by payment to the
account of SISA in London notified to the Facility Agent by not
less than 5 Business Days' notice; and
(b) all payments in euros from SISA to the Facility Agent must be
made by SISA from an account of SISA in London to the account of
the Facility Agent notified to SISA by the Facility Agent in
accordance with Clause 16.1 (Place).
16.5 Currency
(a) Unless a Finance Document specifies that payments under it are to be made
in a different manner, the currency of each amount payable under the
Finance Documents is determined under this Clause.
(b) Interest is payable in the currency in which the relevant amount in respect
of which it is payable is denominated.
(c) A repayment or prepayment of any principal amount is payable in the
currency in which that principal amount is denominated on its due date.
(d) Amounts payable in respect of costs and expenses are payable in the
currency in which they are incurred.
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(e) Each other amount payable under the Finance Documents is payable in US
Dollars.
16.6 No set-off or counterclaim
All payments made by an Obligor under the Finance Documents must be made
without set-off or counterclaim.
16.7 Business Days
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not) or whatever day the Facility Agent
determines is market practice.
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable on
the original due date.
16.8 Partial payments
(a) If the Facility Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors under the Finance Documents,
the Facility Agent must apply that payment towards the obligations of the
Obligors under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Facility Agent under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest
or fee due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal amount
due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Facility Agent must, if so directed by all the Lenders, vary the order
set out in sub-paragraphs (a)(ii) to (iv) above.
(c) This Subclause will override any appropriation made by an Obligor.
16.9 Timing of payments
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within five Business Days of demand by the
relevant Finance Party.
17. REPRESENTATIONS
17.1 Representations
The representations set out in this Clause are made by each Obligor or (if
it so states) the Company to each Finance Party.
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17.2 Status
(a) It is a limited liability company or, in the case of Schlumberger
Investments until it notifies the Facility Agent otherwise, an unlimited
liability company, duly incorporated and validly existing under the laws of
its jurisdiction of incorporation.
(b) It and each of its Material Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
17.3 Powers and authority
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, the Finance
Documents to which it is or will be a party and the transactions
contemplated by those Finance Documents.
17.4 Legal validity
Subject to any general principles of law limiting its obligations and
referred to in any legal opinion required under this Agreement, each
Finance Document to which it is a party is its legally binding, valid and
enforceable obligation.
17.5 Non-conflict
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any document which is binding upon it or any of its Material
Subsidiaries or any of its or its Material Subsidiaries' assets
and, in the case of a Material Subsidiary, in a manner which is
reasonably likely to have a Material Adverse Effect or result in
liability for any Lender.
17.6 No default
(a) No Default is outstanding or will result from the execution of, or the
performance of any transaction contemplated by, any Finance Document; and
(b) no other event is outstanding which constitutes a default under any
document which is binding on it or any of its Material Subsidiaries to an
extent or in a manner which is reasonably likely to have a Material Adverse
Effect.
17.7 Authorisations
All authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents have been (or, in the case of the
Offer, will be) obtained or effected (as appropriate) and are in full force
and effect.
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17.8 Financial statements
Its audited financial statements most recently delivered to the Facility
Agent (which, in the case of the Company at the date of this Agreement,
are the Original Financial Statements):
(a) have been prepared in accordance with accounting principles and
practices generally accepted in its jurisdiction of
incorporation, consistently applied; and
(b) fairly represent its financial condition (consolidated, if
applicable) as at the date to which they were drawn up,
except, in each case, as disclosed to the contrary in those financial
statements.
17.9 No material adverse change
(a) In the case of the Company as at the date of this Agreement, there has
been no material adverse change in its financial condition since 31
December, 2000; and
(b) in the case of SISA and Schlumberger Public Limited Company as at the
date of this Agreement, there has been no material adverse change in its
financial condition since 31 December 1999 which has had, or is
reasonably likely to have, a Material Adverse Effect.
17.10 Litigation
As at the date of this Agreement, no litigation, arbitration or
administrative proceedings are current or, to its knowledge, pending or
threatened, which, if adversely determined, are reasonably likely to have
a Material Adverse Effect.
17.11 ERISA
Each member of the ERISA Group:
(a) has fulfilled its obligations under the minimum funding standards
of ERISA and the Internal Revenue Code with respect to each
Plan; and
(b) is in compliance with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan,
except to an extent which is not reasonably likely to have a Material
Adverse Effect.
17.12 Environmental Compliance
As at the date of this Agreement:
(a) it and each of its Material Subsidiaries:
(i) has obtained all requisite Environmental Licences
required for the carrying on of its business as currently
conducted;
(ii) has at all times complied with the terms and conditions
of such Environmental Licences; and
(iii) has at all times complied with all other applicable
Environmental Law,
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the failure to obtain or comply with which, in each case, is
reasonably likely to have a Material Adverse Effect;
(b) there is no Environmental Claim pending or, to its knowledge,
threatened against it or any of its Material Subsidiaries
which, if adversely determined, is reasonably likely to have a
Material Adverse Effect; and
(c) so far as it is aware, no Dangerous Substance has been used,
disposed of, generated, stored, transported, dumped, released,
deposited, buried or emitted at, on, from or under any premises
(whether or not owned, leased, occupied or controlled by it or
any of its Material Subsidiaries and including any off-site
waste management or disposal location utilised by it or any of
its Material Subsidiaries) in such manner or circumstances as
are reasonably likely to have a Material Adverse Effect.
17.13 Schlumberger Investments
In the case of the Company and Schlumberger Investments only, as at the
date of this Agreement:
(a) except as may arise under the Finance Documents and in
connection with the Offer, Schlumberger Investments has not
traded and does not have any material liabilities or
commitments (actual or contingent, present or future); and
(b) as at the date of the posting of the Offer, the Company is the
direct or indirect owner of all the shares in Schlumberger
Investments.
17.14 Margin Stock
No part of any Loan has been or will be used, directly or indirectly, to
purchase or carry (within the meaning of Regulation U) any ADRs or any
other United States Securities (as defined in Regulation X) or to extend
credit to others for the purpose of purchasing or carrying ADRs or any
United States Securities (as defined in Regulation X).
17.15 Times for making representations
(a) Unless a representation is expressed to be given at a later date, the
representations set out in this Clause are made by each Original Obligor
on the date of this Agreement.
(b) Unless a representation is expressed to be given at a specific date, each
representation is deemed to be repeated by:
(i) each Additional Borrower and the Company on the date that
Additional Borrower becomes an Obligor; and
(ii) each Obligor on the date of each Request and the first day of
each Term.
(c) When the representation in Clause 17.6(a) (No default) is repeated on a
Request for a Rollover Loan or a Term Loan and the first day of each Term
for that Rollover Loan or Term Loan, the reference to Default will be
construed as a reference to an Event of Default only.
(d) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
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18. INFORMATION COVENANTS
18.1 Financial statements
(a) The Company must supply to the Facility Agent in sufficient copies for all
the Lenders:
(i) its audited consolidated financial statements for each of its
financial years; and
(ii) the audited financial statements of each Obligor for each of its
financial years; and
(iii) its interim financial statements for each of its financial
quarters; and
(iv) together with the financial statements to be provided under sub-
paragraph (iii) above, a certificate signed by an authorised
signatory of the Company, setting out details of the Financial
Indebtedness, Shareholders' Funds and Subordinated Debt of each
Borrower (other than the Company) as at the date to which those
financial statements were made up.
(b) All financial statements must be supplied as soon as they are available
and:
(i) in the case of the Company's audited consolidated financial
statements, within 90 days;
(ii) in the case of each Obligor's audited financial statements,
within 240 days; and
(iii) in the case of the Company's interim financial statements, within 60
days,
of the end of the relevant financial period.
18.2 Compliance Certificate
(a) A "Compliance Certificate" is a certificate substantially in the form of
Schedule 6 (Form of Compliance Certificate).
(b) The Company must supply to the Facility Agent a Compliance Certificate with
each set of its financial statements sent to the Facility Agent under
Clause 18.1(a)(i) (Financial statements) of this Agreement.
(c) A Compliance Certificate must be signed by an authorised signatory of the
Company.
18.3 Form of financial statements
(a) The Company must ensure that each set of financial statements supplied
under this Agreement gives (if audited) a true and fair view of, or (if
unaudited) fairly represents, the financial condition (consolidated or
otherwise) of the relevant person as at the date to which those financial
statements were drawn up.
(b) The Company must notify the Facility Agent of any change to the basis on
which its audited consolidated financial statements are prepared and which
are not disclosed in the notes to those financial statements.
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18.4 Information - miscellaneous
The Company must supply to the Facility Agent:
(a) copies of all documents despatched by the Company to its
shareholders (or any class of them) or an Obligor to its
creditors (or any class of them) generally at the same time as
they are despatched;
(b) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending and which might, if adversely determined,
have a Material Adverse Effect;
(c) promptly on request, a list of the then current Material
Subsidiaries; and
(d) promptly on request, such further information regarding the
financial condition and operations of the Group as any Finance
Party through the Facility Agent may reasonably request.
18.5 Notification of Default
(a) Unless the Facility Agent has already been so notified by another Obligor,
each Obligor must notify the Facility Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
(b) Promptly on request by the Facility Agent, the Company must supply to the
Facility Agent a certificate, signed by two of its authorised signatories
on its behalf, certifying that no Default is outstanding or, if a Default
is outstanding, specifying the Default and the steps, if any, being taken
to remedy it.
19. GENERAL COVENANTS
19.1 General
Each Obligor agrees to be bound by the covenants set out in this Clause
relating to it and, where the covenant is expressed to apply to any other
member of the Group, each Obligor must ensure that each of its Subsidiaries
to which the covenant applies performs that covenant.
19.2 Authorisations
Each Obligor must promptly obtain, maintain and comply with the terms of
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Finance Document.
19.3 Compliance with laws
Each member of the Group must comply in all respects with all laws to which
it is subject where failure to do so is reasonably likely to have a
Material Adverse Effect.
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19.4 Pari passu ranking
Each Obligor must ensure that its payment obligations under the Finance
Documents rank at least pari passu with all its other present and future
unsecured payment obligations, except for obligations mandatorily preferred
by law applying to companies generally.
19.5 Negative pledge
(a) No Obligor nor any of the Material Subsidiaries may create or permit to
subsist any Security Interest on any of its assets.
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law in the ordinary course of
business and securing amounts not more than 30 days overdue;
(ii) any Security Interest over the assets of any company which
becomes a Material Subsidiary of an Obligor after the date of
this Agreement, provided that:
(A) the Security Interest is in existence prior to the date
that it becomes a Material Subsidiary and is created
otherwise than in contemplation of becoming a Material
Subsidiary;
(B) the principal amount secured thereby immediately prior to
it becoming a Material Subsidiary of the relevant Borrower
is not thereafter increased or its maturity extended; and
(C) the relevant Obligor uses all reasonable endeavours to
discharge or procure the discharge of that Security
Interest as soon as reasonably practicable after the
company is acquired;
(iii) any Security Interest over any assets (or documents of title
thereto) which are acquired by an Obligor or any Material
Subsidiary of an Obligor subject to that Security Interest,
provided that:
(A) the Security Interest is in existence prior to the date of
the acquisition and is created otherwise than in
contemplation of the acquisition;
(B) the principal amount secured thereby immediately prior to
that asset being acquired does not exceed either its then
resale value or its original cost, and is not thereafter
increased or its maturity extended; and
(C) the relevant Obligor uses all reasonable endeavours to
discharge or procure the discharge of that Security
Interest as soon as reasonably practicable after the
acquisition;
(iv) any Security Interest created to secure any excise or import
taxes or duties owed to, or industrial grants made by, any state
or state agency or authority;
(v) Security Interests arising out of rights of consolidation,
combination, netting or set-off over any current and/or deposit
accounts with a bank or financial institution, where it is
necessary to agree to those rights in connection with a treasury
49
management arrangement operated by an Obligor and/or its
Material Subsidiaries in the ordinary course of its business
or risk management;
(vi) any Security Interest resulting from retention of title or
conditional sale arrangements which are contained in the
normal terms of supply of a supplier of goods to an Obligor or
its Material Subsidiary, where the goods are acquired by such
Obligor or Material Subsidiary in the ordinary course of
business and the arrangements do not constitute Financial
Indebtedness;
(vii) any Security Interest arising in the ordinary course of
business of an Obligor or its Material Subsidiary in relation
to that Obligor's or Material Subsidiary's participation in or
trading on or through a clearing system or investment,
commodity or stock exchange, where, in each case, the Security
Interest arises under the rules or normal procedures or
legislation governing the clearing system or exchange and
neither with the intention of creating security nor in
connection with the borrowing or raising of money;
(viii) any Security Interest arising out of or in connection with
pre-judgment legal process or a judicial award relating to
security for costs;
(ix) any Security Interest created by a Material Subsidiary in
favour of an Obligor; or
(x) any other Security Interests provided that the aggregate
amount secured by those Security Interests does not exceed
US$20,000,000 (or its equivalent in any other currency) at any
time.
19.6 Transactions similar to security
No Obligor nor any of its Material Subsidiaries will:
(a) sell, transfer or otherwise dispose of any of its assets on
terms whereby it is or may be leased to or re-acquired or
acquired by an Obligor or a Material Subsidiary; or
(b) sell, transfer or otherwise dispose of any of its receivables
on recourse terms, except for the discounting of bills or
notes in the ordinary course of trading,
in circumstances where the transaction is entered into primarily as a
method of raising finance or of financing the acquisition of an asset.
19.7 Disposals
(a) No Obligor nor any its Material Subsidiaries will, either in a single
transaction or in a series of transactions, whether related or not,
and whether voluntarily or involuntarily, sell, transfer, grant or
lease or otherwise dispose of all or any part of its assets if that
disposal has, or is reasonably likely to have, a Material Adverse
Effect.
(b) Nothing in paragraph (a) prohibits a Permitted Transaction.
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19.8 Change of business
The Company must ensure that no substantial change is made to the
general nature of the business of the Company or the Group (taking
into account for this purpose the Target Group) from that carried on
at the date of this Agreement if that change is reasonably likely to
have a Material Adverse Effect.
19.9 Mergers
No Obligor may enter into any amalgamation, demerger, merger or
reconstruction if that transaction is reasonably likely to have a
Material Adverse Effect.
19.10 Environmental matters
(a) Each Obligor and each Material Subsidiary must ensure that it is, and
has been, in compliance with all Environmental Law and Environmental
Licences applicable to it, where failure to do so is reasonably likely
to have a Material Adverse Effect.
(b) Each Obligor must promptly upon becoming aware notify the Facility
Agent of any Environmental Claim current, or to its knowledge, pending
which, if substantiated, is reasonably likely either to have a
Material Adverse Effect or result in any liability for a Finance
Party.
19.11 Insurance
Each Obligor and each Material Subsidiary must insure its business and
assets with insurance companies to such an extent and against such
risks as companies engaged in a similar business normally insure.
19.12 Borrower financial condition
(a) (i) Each Borrower (other than the Company) must ensure that the
aggregate amount of its Shareholders' Funds and Subordinated
Debt at any time is equal to or greater than the aggregate
principal amount outstanding of its Financial Indebtedness
at that time.
(ii) For this purpose, Financial Indebtedness excludes
Subordinated Debt and trade debt and includes intra-Group
Financial Indebtedness which is not Subordinated Debt and
any Loans borrowed by the relevant Borrower.
(b) In order for Subordinated Debt to be included for the purposes of
calculating a Borrower's Subordinated Debt under paragraph (a)(i)
above the relevant Borrower must supply to the Facility Agent, in
form and substance satisfactory to it (acting reasonably):
(i) a duly executed Subordination Agreement in respect of that
Subordinated Debt;
(ii) in the case of a Subordination Agreement to which a company
incorporated in any of the U.K., France, the Netherlands
Antilles or Bermuda is a party:
(A) if not already covered by the corresponding documents
referred to in Part I of Schedule 2, a certified copy
of a resolution of the board of
51
directors of that company approving the terms, and
authorising the execution of, that Subordination
Agreement;
(B) if different from the corresponding documents referred
to in Part I of Schedule 2, a certified copy of the
constitutional documents and certificate of
incorporation of that company;
(C) a legal opinion of Xxxxx & Xxxxx, London addressed to
the Finance Parties; and
(D) other than in the case of the U.K., a legal opinion
from legal advisers in that jurisdiction, acceptable to
the Facility Agent (acting reasonably), addressed to
the Finance Parties; and
(iii) in the case of a Subordination Agreement to which a company
incorporated in a jurisdiction other than the UK, the
Netherlands Antilles, France or Bermuda is a party, any
authorisation or document, opinion or assurance which the
Facility Agent (acting reasonably) has notified the relevant
Borrower is necessary in connection with the entry into and
performance of, and the transactions contemplated by, the
Subordination Agreement or the validity or enforceability of
the Subordination Agreement.
(c) Each relevant Borrower must conduct its affairs in a manner which
will enable it to meet all its obligations under the Finance
Documents as and when they fall due.
20. DEFAULT
20.1 Events of Default
(a) Each of the events set out in this Clause is an Event of Default.
(b) In this Clause, "Material group member" means an Obligor or a
Material Subsidiary.
20.2 Non-payment
An Obligor does not pay on the due date any amount payable by it under
the Finance Documents in the manner required under the Finance
Documents, unless the non-payment:
(a) is caused by technical or administrative error; and
(b) is remedied within three Business Days of the due date.
20.3 Breach of other obligations
(a) An Obligor does not comply with any term of Clause 19.7 (Disposals) or
Clause 19.9 (Mergers); or
(b) an Obligor does not comply with any other term of the Finance
Documents not already referred to in this Clause, unless the non-
compliance:
(i) is capable of remedy; and
52
(ii) is remedied within 21 days of the earlier of the Facility Agent
giving notice and the Obligor becoming aware of the non-
compliance.
20.4 Misrepresentation
A representation made or repeated by an Obligor in any Finance
Document or in any document delivered by or on behalf of any Obligor
under any Finance Document is incorrect in any material respect when
made or deemed to be repeated.
20.5 Cross-acceleration
(a) Any of the following occurs in respect of a Material Group Member:
(i) any of its Financial Indebtedness is not paid when due (after the
expiry of any originally applicable grace period);
(ii) any of its Financial Indebtedness:
(A) becomes prematurely due and payable; or
(B) is placed on demand,
in each case, as a result of an event of default (howsoever described)
unless the aggregate amount of Financial Indebtedness falling within
paragraphs (i) and (ii) above is less than:
(I) in the case of the Company and each directly owned Material
Subsidiary of the Company other than another Obligor,
US$50,000,000; and
(II) in the case of any other Obligor or any Material Subsidiary
of any other Obligor, US$10,000,000,
or its equivalent in any other currency.
(b) For the purposes of paragraph (a) above, "Financial Indebtedness" also
includes the following:
(i) any derivative transaction protecting against or benefiting from
fluctuations in any rate or price; and
(ii) any counter-indemnity obligation in respect of any guarantee,
indemnity, bond, letter of credit or any other instrument issued
by a bank or financial institution.
20.6 Insolvency
Any of the following occurs in respect of a Material Group Member:
(a) it is, or is deemed by a court of competent jurisdiction to be,
unable to pay its debts as they fall due or insolvent;
(b) it ad mits its inability to pay its debts as they fall due;
(c) it suspends making payments on any of its debts or announces an
intention to do so;
53
(d) by reason of actual or anticipated financial difficulties, it begins
negotiations with any creditor for the rescheduling of any of its
indebtedness; or
(e) a moratorium is declared in respect of any of its indebtedness.
20.7 Insolvency proceedings
(a) Except as provided below, any of the following occurs in respect of a
Material Group Member:
(i) any step is taken by it with a view to a composition, assignment or
similar arrangement with any of its creditors;
(ii) a meeting of it is convened for the purpose of considering any
resolution for (or to petition for) its winding-up, administration
or dissolution or any such resolution is passed;
(iii) any person presents a petition for its winding-up, administration or
dissolution;
(iv) an order for its winding-up, administration or dissolution is made;
(v) any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator
or similar officer is appointed in respect of:
(A) it; or
(B) any of its assets (if those assets have an aggregate value of
US$10,000,000, or its equivalent in any other currency or
more);
(vi) its directors or other officers request the appointment of a
liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or similar
officer;
(vii) in the case of a Material Group Member incorporated in France, a
mandataire ad hoc or a conciliateur is appointed and that
appointment is, in the reasonable opinion of the Majority Lenders,
likely to have a Material Adverse Effect; or
(viii) any other analogous step or procedure is taken in any jurisdiction.
(b) Paragraph (a) does not apply to:
(i) any step or procedure which is part of a Permitted Transaction; or
(ii) a petition for winding-up presented by a creditor which is being
contested in good faith and with due diligence and is discharged or
struck out within 21 days.
20.8 Creditors' process
Any attachment, sequestration, distress, execution or analogous event
affects asset(s) (with an aggregate value of US$10,000,000 (or its
equivalent in any other currency) or more) of a Material Group Member, and
is not discharged within 21 days.
53
20.9 Cessation of business
A Material Group Member ceases, or announces an intention to cease, to
carry on all, or substantially all, of its business, except:
(a) as part of a Permitted Transaction; or
(b) as a result of any disposal allowed under this Agreement.
20.10 Effectiveness of Finance Documents
(a) It is or becomes unlawful for any Obligor to perform any of its material
obligations under the Finance Documents.
(b) Any Finance Document is not effective or is alleged by an Obligor to be
ineffective for any reason.
(c) An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
20.11 Ownership of the Obligors
(a) An Obligor (other than the Company) is not or ceases to be a wholly-owned
Subsidiary of the Company.
(b) Any person, or group of persons acting in concert, directly or indirectly
acquires, or becomes entitled to, or to any beneficial entitlement in, 40
per cent. or more of the outstanding voting stock of the Company.
20.12 Expropriation
Assets of any Material Group Member are expropriated to an extent which is
reasonably likely to have a Material Adverse Effect.
20.13 Final judgment
(a) One or more final judgments for the payment of money in excess of
US$50,000,000 (or its equivalent in any other currency) in aggregate is
rendered against any Obligor or any Material Subsidiary; and
(b) the relevant company fails to discharge that judgment or provide for its
discharge in accordance with its terms, or procure a stay of execution of
that judgment, within 60 days after the date of entry of that judgment;
however, any such judgment or order will not be (and will not constitute
part of) an Event of Default if and for so long as:
(i) the amount of the judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering
payment thereof; and
(ii) the relevant insurer has been notified of, and has not disputed the
claim made for payment of, the amount of that judgment or order.
20.14 ERISA
(a) Any member of the ERISA Group fails to pay within 60 days of the date
when due an amount or amounts aggregating in excess of US$50,000,000
which it has become liable to pay under Title IV of ERISA; or
(b) notice of intent to terminate a Plan or Plans having aggregate
Unfunded Liabilities in excess of US$50,000,000 (collectively, a
"Material Plan") is filed under Title IV of ERISA (other than in a
standard termination under Section 4041(b) of ERISA) by any member of
the ERISA Group, any plan administrator or any combination of the
foregoing; or
(c) the PBGC institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for the premiums under Section 4007 of
ERISA) in respect of or to cause the trustee to be appointed to
administer any Material Plan; or
(d) a condition exists by reason of which the PBGC is entitled under
Section 4042(a)(1) or (2) or ERISA to obtain a decree adjudicating
that any Material Plan must be terminated; or
(e) there occurs with respect to one or more Multiemployer Plans:
(i) a complete or partial withdrawal; or
(ii) a default within the meaning of Section 4219(c)(5) of ERISA,
which in the case of the event described in sub-paragraph (i) or
(ii),
that is reasonably expected to cause one or more members of the ERISA
Group to incur a current payment obligation in excess of
US$50,000,000.
20.15 Material adverse change
Any event or series of events occurs which, in the reasonable opinion
of the Majority Lenders, is reasonably likely to have a Material
Adverse Effect.
20.16 Acceleration
If an Event of Default is outstanding, the Facility Agent may, by
notice to the Company:
(a) cancel the Total Commitments; and/or
(b) declare that all or part of any amounts outstanding under the
Finance Documents are:
(i) immediately due and payable; and/or
(ii) payable on demand by the Facility Agent acting on the
instructions of the Majority Lenders.
Any notice given under this Subclause will take effect in accordance
with its terms.
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21. THE ADMINISTRATIVE PARTIES
21.1 Appointment and duties of the Facility Agent
(a) Each Finance Party (other than the Facility Agent) irrevocably appoints the
Facility Agent to act as its agent under the Finance Documents.
(b) Each Finance Party irrevocably authorises the Facility Agent to:
(i) perform the duties and to exercise the rights, powers and discretions
that are specifically given to it under the Finance Documents,
together with any other incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be executed by the Facility
Agent.
(c) The Facility Agent has only those duties which are expressly specified in
the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
21.2 Role of the Arrangers
Except as specifically provided in the Finance Documents, no Arranger has
any obligations of any kind to any other Party in connection with any
Finance Document.
21.3 No fiduciary duties
Except as specifically provided in a Finance Document, nothing in the
Finance Documents makes an Administrative Party a trustee or fiduciary for
any other Party or any other person. No Administrative Party need hold in
trust any moneys paid to it for a Party or be liable to account for
interest on those moneys.
21.4 Individual position of an Administrative Party
(a) If it is also a Lender, each Administrative Party has the same rights and
powers under the Finance Documents as any other Lender and may exercise
those rights and powers as though it were not an Administrative Party.
(b) Each Administrative Party may:
(i) carry on any business with any Obligor or its related entities
(including acting as an agent or a trustee for any other financing);
and
(ii) retain any profits or remuneration it receives under the Finance
Documents or in relation to any other business it carries on with any
Obligor or its related entities.
21.5 Reliance
The Facility Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by any person regarding any matters which
may reasonably be assumed to be within his knowledge or within his
power to verify;
57
(c) engage, pay for and rely on professional advisers selected by it
(including those representing a Party other than the Facility Agent);
and
(d) act under the Finance Documents through its personnel and agents.
21.6 Majority Lenders' instructions
(a) The Facility Agent is fully protected if it acts on the instructions of the
Majority Lenders in the exercise of any right, power or discretion or any
matter not expressly provided for in the Finance Documents. Any such
instructions given by the Majority Lenders will be binding on all the
Lenders. In the absence of instructions, the Facility Agent may act as it
considers to be in the best interests of all the Lenders.
(b) The Facility Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings in connection with any Finance Document.
(c) The Facility Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any liability or
loss which it may incur in complying with the instructions of the Majority
Lenders.
21.7 Responsibility
(a) No Administrative Party is responsible to any other Finance Party for the
adequacy, accuracy or completeness of:
(i) any Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document.
(b) Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms that it:
(i) has made, and will continue to make, its own independent appraisal of
all risks arising under or in connection with the Finance Documents
(including the financial condition and affairs of each Obligor and its
related entities and the nature and extent of any recourse against any
Party or its assets); and
(ii) has not relied exclusively on any information provided to it by any
Administrative Party in connection with any Finance Document.
21.8 Exclusion of liability
(a) The Facility Agent is not liable to any other Finance Party for any action
taken or not taken by it in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent of
the Facility Agent in respect of any claim it might have against the
Facility Agent or in respect of any act or omission of any kind by that
officer, employee or agent in connection with any Finance Document. Any
officer, employee or agent of the Facility Agent may rely on this Subclause
and enforce its terms under the Contracts (Rights of Third Parties) Xxx
0000.
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21.9 Default
(a) The Facility Agent is not obliged to monitor or enquire whether a
Default has occurred. The Facility Agent is not deemed to have
knowledge of the occurrence of a Default.
(b) If the Facility Agent:
(i) receives notice from a Party referring to this Agreement,
describing a Default and stating that the event is a Default; or
(ii) is aware of the non-payment of any principal or interest or any
fee payable to a Lender under this Agreement,
it must promptly notify the Lenders.
21.10 Information
(a) The Facility Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
(b) Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another Party.
(c) Except as provided above, the Facility Agent has no duty:
(i) either initially or on a continuing basis to provide any Lender
with any credit or other information concerning the risks arising
under or in connection with the Finance Documents (including any
information relating to the financial condition or affairs of any
Obligor or its related entities or the nature or extent of
recourse against any Party or its assets) whether coming into its
possession before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Lender in accordance
with a Finance Document, to request any certificate or other
document from any Obligor.
(d) In acting as the Facility Agent, the agency division of the Facility
Agent is treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent which, in
its opinion, is acquired by it otherwise than in its capacity as the
Facility Agent may be treated as confidential by the Facility Agent
and will not be treated as information possessed by the Facility Agent
in its capacity as such.
(e) Each Obligor irrevocably authorises the Facility Agent to disclose to
the other Finance Parties any information which, in its opinion, is
received by it in its capacity as the Facility Agent.
21.11 Indemnities
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Lender must indemnify the Facility Agent for that
Lender's Pro Rata Share of any loss or liability incurred by the
Facility Agent in acting as the Facility Agent, except to the extent
that the loss or liability is caused by the Facility Agent's gross
negligence or wilful misconduct.
59
(b) The Facility Agent may deduct from any amount received by it for a Lender
any amount due to the Facility Agent from that Lender under a Finance
Document but unpaid.
21.12 Compliance
The Facility Agent may refrain from doing anything (including disclosing
any information) which might, in its opinion, constitute a breach of any
law or regulation or be otherwise actionable at the suit of any person,
and may do anything which, in its opinion, is necessary or desirable to
comply with any law or regulation.
21.13 Resignation of the Facility Agent
(a) The Facility Agent may resign and appoint any of its Affiliates as
successor Facility Agent by giving notice to the Lenders and the Company.
(b) Alternatively, the Facility Agent may resign by giving notice to the
Lenders and the Company, in which case the Majority Lenders may appoint a
successor Facility Agent.
(c) If no successor Facility Agent has been appointed under paragraph (b)
above within 30 days after notice of resignation was given, the Facility
Agent may appoint a successor Facility Agent.
(d) The person(s) appointing a successor Facility Agent must, if practicable,
consult with the Company prior to the appointment.
(e) The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts its
appointment. On giving the notification, the successor Facility Agent
will succeed to the position of the Facility Agent and the term "Facility
Agent" will mean the successor Facility Agent.
(f) The retiring Facility Agent must, at its own cost, make available to the
successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the
purposes of performing its functions as the Facility Agent under the
Finance Documents.
(g) Upon its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or not
taken by it in connection with the Finance Documents while it was the
Facility Agent, and, subject to paragraph (f) above, it will have no
further obligations under any Finance Document.
(h) The Majority Lenders may, by notice to the Facility Agent, require it to
resign under paragraph (b) above.
21.14 Relationship with Lenders
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and must if requested to do so by the
Majority Lenders, convene a meeting of the Lenders.
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(c) The Facility Agent must keep a register of all the Parties and supply any
other Party with a copy of the register on request. The register will
include each Lender's Facility Office(s) and contact details for the
purposes of this Agreement.
21.15 Notice period
Where this Agreement specifies a minimum period of notice to be given to
the Facility Agent, the Facility Agent may, at its discretion, accept a
shorter notice period.
22. EVIDENCE AND CALCULATIONS
22.1 Accounts
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate for the
purpose of any litigation or arbitration proceedings.
22.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents will be, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
22.3 Calculations
Any interest or fee accruing under this Agreement accrues from day to day
and is calculated on the basis of the actual number of days elapsed and a
year of 360 or 365 days or otherwise, depending on what the Facility
Agent determines is market practice.
23. FEES
23.1 Facility Agent's fee
The Company must pay to the Facility Agent for its own account an agency
fee in the manner agreed in the Fee Letter between the Facility Agent and
the Company.
23.2 Front-end fee
The Company must pay to the Arrangers for their own account a front-end
fee in the manner agreed in the Fee Letter between the Arrangers and the
Company.
23.3 Commitment fee
(a) The Company must pay a commitment fee computed at the rate of:
(i) on that portion of the undrawn, uncancelled portion of the Total
Commitments which may be drawn by each Borrower other than:
(A) the Company;
(B) during the period ending on the date falling three months
after the first Utilisation Date only, Schlumberger
Investments,
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0.115 per cent. per annum; and
(ii) on the remainder of the undrawn, uncancelled Total Commitments,
0.10 per cent. per annum.
(b) Accrued commitment fee is payable quarterly in arrear from the date of
this Agreement. Accrued commitment fee is also payable to the Facility
Agent for a Lender on the date its Commitment is cancelled in full.
24. INDEMNITIES AND BREAK COSTS
24.1 Currency indemnity
(a) The Company must, as an independent obligation, indemnify each Finance
Party against any loss or liability which that Finance Party incurs as a
consequence of:
(i) that Finance Party receiving an amount in respect of an Obligor's
liability under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment or
order,
in a currency other than the currency in which the amount is expressed to
be payable under the relevant Finance Document.
(b) Unless otherwise required by law, each Obligor waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents in
a currency other than that in which it is expressed to be payable.
24.2 Other indemnities
(a) The Company must indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) (other than by reason of negligence or default by that Finance
Party) a Loan not being made after a Request has been delivered
for that Loan; or
(iii) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment.
The Company's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount
payable under any Finance Document, any amount repaid or prepaid or any
Loan from such sources as it may reasonably select.
(iv) The Company must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of acting or
relying on any notice expressed to be sent by or on behalf of an
Obligor which the Facility Agent reasonably believes to be
genuine, correct and appropriately authorised.
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24.3 Break Costs
(a) Each Borrower must pay to each Lender its Break Costs.
(b) Break Costs are the amount (if any) determined by the relevant Lender by
which:
(i) the interest which that Lender would have received (excluding the
applicable Margin for the period from the date of the prepayment
until the last day of the relevant Term) for the period from the
date of receipt of any part of its share in a Loan or an overdue
amount to the last day of the current Term for that Loan or
overdue amount if the principal or overdue amount received had
been paid on the last day of that Term;
exceeds
(ii) the amount which that Lender would be able to obtain by placing
an amount equal to the amount received by it on deposit with a
leading bank in the London interbank market for a period starting
on the Business Day following receipt and ending on the last day
of the relevant Term.
(c) Each Lender must supply to the Facility Agent for the relevant Borrower
details of the amount of any Break Costs claimed by it under this
Subclause.
25. EXPENSES
25.1 Initial costs
The Company must pay to each Administrative Party the amount of all
reasonable costs and expenses incurred by it in connection with the
negotiation, syndication and execution of the Finance Documents in
accordance with the arrangements agreed between the Company and the
Arrangers prior to the date of this Agreement.
25.2 Subsequent costs
The Company must pay to the Facility Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection
with:
(a) the negotiation, preparation, printing and execution of any
Finance Document (other than a Transfer Certificate) executed
after the date of this Agreement; and
(b) any amendment, waiver or consent requested by or on behalf of an
Obligor or specifically allowed by this Agreement.
25.3 Enforcement costs
The Company must pay to each Finance Party the amount of all costs and
expenses (including legal fees) incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
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26. AMENDMENTS AND WAIVERS
26.1 Procedure
(a) Except as provided in this Clause, any term of the Finance Documents may
be amended or waived with the agreement of the Company and the Majority
Lenders. The Facility Agent may effect, on behalf of any Finance Party,
an amendment or waiver allowed under this Clause.
(b) The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under paragraph (a) above. Any such
amendment or waiver is binding on all the Parties.
26.2 Exceptions
(a) An amendment or waiver which relates to:
(i) the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii) an extension of the date of payment of any amount to a Lender
under the Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fee or other amount payable to a
Lender under the Finance Documents;
(iv) an increase in, or an extension of, a Commitment;
(v) a term of a Finance Document which expressly requires the consent
of each Lender;
(vi) the right of a Lender to assign or transfer its rights or
obligations under the Finance Documents; or
(vii) this Clause,
may only be made with the consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
26.3 Change of currency
If a change in any currency of a country occurs (including where there is
more than one currency or currency unit recognised at the same time as
the lawful currency of a country), the Finance Documents will be amended
to the extent the Facility Agent (acting reasonably and after
consultation with the Company) determines is necessary to reflect the
change.
26.4 Waivers and remedies cumulative
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
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(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of that
right.
27. CHANGES TO THE PARTIES
27.1 Assignments and transfers by Obligors
No Obligor may assign or transfer any of its rights and obligations under
the Finance Documents without the prior consent of all the Lenders.
27.2 Assignments and transfers by Lenders
(a) A Lender (the "Existing Lender") may, subject to the following provisions
of this Subclause, at any time assign or transfer (including by way of
novation) any of its rights and obligations under this Agreement to
another bank or financial institution (the "New Lender").
(b) The consent of the Company is required for any assignment or transfer
unless the New Lender is both:
(i) another Lender or an Affiliate of a Lender; and
(ii) is a Qualifying Lender but not a Treaty Lender (as defined in
Clause 13.1 (General)).
Unless the proposed New Lender is a Treaty Lender or is not a Qualifying
Lender, the consent of the Company must not be unreasonably withheld or
delayed. The Company will be deemed to have given its consent ten
Business Days after the Company is given notice of the request, unless it
is expressly refused by the Company within that time. Notice will not be
effectively given to the Company under this paragraph (b) if the notice
does not specify:
(iii) the jurisdiction in which the proposed New Lender is tax resident
and whether that proposed New Lender is a Treaty Lender; and
(iv) (A) that Loans will be disbursed by the proposed New Lender from
outside the U.S.A.;
(B) that negotiations in respect of the Facility have taken
place outside the U.S.A. and execution of the Transfer
Certificate or other transfer document by the proposed New
Lender will take place outside the U.S.A.; and
(C) that Loans will be booked outside the U.S.A. by the proposed
New Lender.
(c) The Company may not withhold its consent solely because the assignment or
transfer might increase the Mandatory Cost.
(d) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with the following
provisions of this Clause; or
(ii) the New Lender confirms to the Facility Agent and the Company in
form and substance satisfactory to the Facility Agent that it is
bound by the terms of this Agreement as a Lender. On the transfer
becoming effective in this manner the
65
Existing Lender will be released from its obligations under this
Agreement to the extent that they are transferred to the New
Lender.
(e) Unless the Facility Agent otherwise agrees, the New Lender must pay to
the Facility Agent for its own account, on or before the date any
assignment or transfer occurs, a fee of e1,500.
(f) Any reference in this Agreement to a Lender includes a New Lender but
excludes a Lender if no amount is or may be owed to or by it under this
Agreement.
(g) If any Lender assigns its rights under this Agreement, a written
instrument by which those rights are assigned must be notified to any
Borrower incorporated in France by bailiff ("huissier") in accordance
with the provisions of Article 1690 of the French Civil Code at the cost
of the relevant New Lender.
27.3 Procedure for transfer by way of novations
(a) In this Subclause:
"Transfer Date"
means, for a Transfer Certificate, the later of:
(i) the proposed Transfer Date specified in that Transfer
Certificate; and
(ii) the date on which the Facility Agent executes that Transfer
Certificate.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facility
Agent a duly completed Transfer Certificate; and
(ii) the Facility Agent executes it.
The Facility Agent must execute as soon as reasonably practicable a
Transfer Certificate delivered to it and which appears on its face to be
in order.
(c) Each Party (other than the Existing Lender and the New Lender)
irrevocably authorises the Facility Agent to execute any duly completed
Transfer Certificate on its behalf.
(d) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of the
Existing Lender expressed to be the subject of the novation in
the Transfer Certificate in substitution for the Existing Lender;
and
(ii) the Existing Lender will be released from those obligations and
cease to have those rights.
(e) For the avoidance of doubt, the Parties agree that any novation effected
in accordance with this Clause shall constitute a novation ("novation")
within the meaning of Article 1271 et seq. of the French Civil Code.
66
27.4 Limitation of responsibility of Existing Lender
(a) Unless expressly agreed to the contrary, an Existing Lender is not
responsible to a New Lender for the legality, validity, adequacy,
accuracy, completeness or performance of:
(i) any Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with the
Finance Documents (including the financial condition and affairs
of each Obligor and its related entities and the nature and
extent of any recourse against any Party or its assets) in
connection with its participation in this Agreement; and
(ii) has not relied exclusively on any information supplied to it by
the Existing Lender in connection with any Finance Document.
(c) Nothing in any Finance Document requires an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause; or
(ii) support any losses incurred by the New Lender by reason of the
non-performance by any Obligor of its obligations under any
Finance Document or otherwise.
27.5 Costs resulting from change of Lender or Facility Office
If:
(a) a Lender assigns or transfers any of its rights and obligations
under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to pay a
Tax Payment or an Increased Cost,
then, unless the assignment, transfer or change is made by a Lender to
mitigate any circumstance giving rise to the Tax Payment, Increased Cost
or a right to be prepaid and/or cancelled by reason of illegality, the
Obligor need only pay that Tax Payment or Increased Cost to the same
extent that it would have been obliged to if no assignment, transfer or
change had occurred.
27.6 Additional Borrowers
(a) If the Company wishes one of its direct or indirect Subsidiaries to
become an Additional Borrower, then it may (with the prior consent of all
the Lenders) deliver to the Facility Agent the relevant documents and
evidence listed in Part II of Schedule 2 (Conditions precedent
documents).
67
(b) The relevant Subsidiary will become an Additional Borrower when the
Facility Agent notifies the other Finance Parties and the Company that it
has received all of the documents and evidence referred to in paragraph
(a) above in form and substance satisfactory to it. The Facility Agent
must give this notification as soon as reasonably practicable.
(c) Delivery of an Accession Agreement, executed by the relevant Subsidiary
and the Company, to the Facility Agent constitutes confirmation by that
Subsidiary and the Company that the Repeating Representations are then
correct.
27.7 Resignation of a Borrower (other than the Company)
(a) In this Subclause, "Resignation Request" means a letter in the form of
Part II of Schedule 7 (Form of Resignation Request), with such amendments
as the Facility Agent may approve or reasonably require.
(b) The Company may request that a Borrower (other than the Company) ceases
to be a Borrower by giving to the Facility Agent a duly completed
Resignation Request.
(c) The Facility Agent must accept a Resignation Request and notify the
Company and the Lenders of its acceptance if:
(i) the Facility Agent is not aware that a Default is outstanding or
would result from the acceptance of the Resignation Request; and
(ii) no amount owed by that Borrower under this Agreement is still
outstanding.
(d) The Borrower will cease to be a Borrower when the Facility Agent gives
the notification referred to in paragraph (c) above.
27.8 Changes to the Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Facility Agent
must (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
27.9 No obligations to be performed from the USA
No Lender may perform its obligations under this Agreement through any
office located in the U.S.A. Each Lender shall take all reasonable steps
to ensure that any extension of credit to a Borrower under this Agreement
is made and maintained at all times "outside the United States" as that
phrase is used in Section 221.6 (c) of Regulation U of the Board of
Governors of the United States Federal Reserve System.
28. DISCLOSURE OF INFORMATION
(a) (i) On the Unconditional Date, this Clause supersedes any previous
confidentiality undertaking given by a Finance Party in
connection with this Agreement prior to it becoming a Party.
(ii) Prior to the Unconditional Date, each Finance Party must keep
confidential any information supplied to it by or on behalf of
any Obligor in connection with the Finance Documents in
accordance with the confidentiality undertaking signed by it
before it became a Party.
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(b) Each Finance Party must keep confidential any information supplied to it
by or on behalf of any Obligor in connection with the Finance Documents.
However, a Finance Party is entitled to disclose information:
(i) which is publicly available, other than as a result of a breach
by that Finance Party of this Clause;
(ii) in connection with any legal or arbitration proceedings;
(iii) if required to do so under any law or regulation;
(iv) to a governmental, banking, taxation or other regulatory
authority;
(v) to its professional advisers;
(vi) to the extent allowed under paragraph (c) below; or
(vii) with the agreement of the relevant Obligor.
(c) A Finance Party may disclose to an Affiliate or any person with whom it
may enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement (a "Participant"):
(i) a copy of any Finance Document; and
(ii) any information which that Finance Party has acquired under or in
connection with any Finance Document.
However, before a participant may receive any confidential information,
it must agree with the relevant Finance Party to keep that information
confidential on the terms of paragraph (b) above.
29. SET-OFF
While an Event of Default is outstanding, a Finance Party may set off any
matured obligation owed to it by an Obligor under the Finance Documents
(to the extent beneficially owned by that Finance Party) against any
obligation (whether or not matured) owed by that Finance Party to that
Obligor, regardless of the place of payment, booking branch or currency
of either obligation. If the obligations are in different currencies, the
Finance Party may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of the set-off.
30. PRO RATA SHARING
30.1 Redistribution
If any amount owing by an Obligor under this Agreement to a Lender (the
"Recovering Lender") is discharged by payment, set-off or any other
manner other than through the Facility Agent under this Agreement (a
"Recovery"), then:
(a) the recovering Lender must, within three Business Days, supply
details of the recovery to the Facility Agent;
69
(b) the Facility Agent must calculate whether the recovery is in
excess of the amount which the recovering Lender would have
received if the recovery had been received by the Facility Agent
under this Agreement; and
(c) the recovering Lender must pay to the Facility Agent an amount
equal to the excess (the "Redistribution").
30.2 Effect of redistribution
(a) The Facility Agent must treat a redistribution as if it were a payment by
the relevant Obligor under this Agreement and distribute it among the
Lenders accordingly.
(b) When the Facility Agent makes a distribution under paragraph (a) above,
the recovering Lender will be subrogated to the rights of the Finance
Parties which have shared in that redistribution.
(c) If and to the extent that the recovering Lender is not able to rely on
any rights of subrogation under paragraph (b) above, the relevant Obligor
will owe the recovering Lender a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
(d) If:
(i) a recovering Lender must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(ii) the recovering Lender has paid a redistribution in relation to
that recovery,
each Finance Party must reimburse the recovering Lender all or the
appropriate portion of the redistribution paid to that Finance Party,
together with interest for the period while it held the redistribution.
In this event, the subrogation in paragraph (b) above will operate in
reverse to the extent of the reimbursement.
30.3 Exceptions
Notwithstanding any other term of this Clause, a recovering Lender need
not pay a redistribution to the extent that:
(a) it would not, after the payment, have a valid claim against the
relevant Obligor in the amount of the redistribution; or
(b) it would be sharing with another Finance Party any amount which
the recovering Lender has received or recovered as a result of
legal or arbitration proceedings, where:
(i) the recovering Lender notified the Facility Agent of those
proceedings; and
(ii) the other Finance Party had an opportunity to participate
in those proceedings but did not do so or did not take
separate legal or arbitration proceedings as soon as
reasonably practicable after receiving notice of them.
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31. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other term of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other term of the Finance Documents.
32. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts. This
has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
33. NOTICES
33.1 In writing
(a) Any communication in connection with a Finance Document must be in
writing and, unless otherwise stated, may be given in person, by post,
telex, fax or any electronic communication approved by the Facility
Agent.
(b) For the purpose of the Finance Documents, an electronic communication
will be treated as being in writing.
(c) Unless it is agreed to the contrary, any consent or agreement required
under a Finance Document must be given in writing.
33.2 Contact details
(a) Except as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those
notified by that Party for this purpose to the Facility Agent on or
before the date it becomes a Party.
(b) The contact details of the Company for this purpose are:
Address: Schlumberger Limited, Paris Branch
00 xxx Xxxxx Xxxxxxxxx
00000 Xxxxx
Fax number: + 00 (0) 0 00 00 00 90
Attention: Treasury Department.
(c) The contact details of the Facility Agent for this purpose are:
Address: Citibank International plc
XX Xxx 000
000 Xxxxxx
Xxxxxx XX0X 0XX
Fax number: 00 00 0000 0000/4484
Attention: Loans Agency
________________________________________________________________________________
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________________________________________________________________________________
(d) Any Party may change its contact details by giving five Business Days'
notice to the Facility Agent or (in the case of the Facility Agent) to
the other Parties.
(e) Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to
specify that department or officer.
33.3 Effectiveness
(a) Except as provided below, any communication in connection with a Finance
Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, five days after being deposited in the post, postage
prepaid, in a correctly addressed envelope;
(iii) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at
the end of the sender's copy of the notice;
(iv) if by fax, when received in legible form; and
(v) if by e-mail or any other electronic communication, on receipt.
(b) A communication given under paragraph (a) above but received on a non-
working day or after business hours in the place of receipt will only be
deemed to be given on the next working day in that place.
(c) A communication to the Facility Agent will only be effective on actual
receipt by it.
33.4 Obligors
(a) All communications under the Finance Documents to or from an Obligor must
be sent through the Facility Agent.
(b) All communications under the Finance Documents to or from an Obligor
(other than the Company) must be sent through the Company.
(c) Each Obligor (other than the Company) irrevocably appoints the Paris
Branch of the Company to act as its agent:
(i) to give and receive all communications under the Finance
Documents; and
(ii) to sign all documents under or in connection with the Finance
Documents.
(d) Any communication given to the Company in connection with a Finance
Document will be deemed to have been given also to the other Obligors.
(e) The Facility Agent may assume that any communication made by the Company
is made with the consent of each other Obligor.
34. LANGUAGE
(a) Any notice given in connection with a Finance Document must be in
English.
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(b) Any other document provided in connection with a Finance Document must
be:
(i) in English; or
(ii) (unless the Facility Agent otherwise agrees) accompanied by a
certified English translation. In this case, the English
translation prevails unless the document is a statutory or other
official document.
35. GOVERNING LAW
This Agreement is governed by English law.
36. ENFORCEMENT
36.1 Jurisdiction
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document.
(b) The English courts are the most appropriate and convenient courts to
settle any such dispute.
(c) This Clause is for the benefit of the Finance Parties only. To the extent
allowed by law, a Finance Party may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
36.2 Service of process
(a) Each Obligor not incorporated in England and Wales irrevocably appoints
Schlumberger Public Limited Company as its agent under the Finance
Documents for service of process in any proceedings before the English
courts.
(b) If any person appointed as process agent is unable for any reason to act
as agent for service of process, the Company (on behalf of all the
Obligors) must immediately appoint another agent on terms acceptable to
the Facility Agent. Failing this, the Facility Agent may appoint another
agent for this purpose.
(c) Each Obligor agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings.
(d) This Clause does not affect any other method of service allowed by law.
36.3 Waiver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY
TRANSACTION CONTEMPLATED BY ANY FINANCE DOCUMENT. THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO TRIAL BY COURT.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
ORIGINAL PARTIES
Name Of Original Lender Commitments
U.S.$
The Chase Manhattan Bank 900,000,000
BNP Paribas 900,000,000
Citibank, N.A. London Branch 900,000,000
Xxxxxx Brothers Bankhaus AG, London Branch 300,000,000
----------------
Total Commitments US$3,000,000,000
----------------
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SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST REQUEST
Original obligors
1. A copy of the constitutional documents of each Original Obligor including,
without limitation, a copy of the "statuts" and an extract of the K-Bis of
the Registry of Commerce and Companies dated no more than one month prior
to the date of this Agreement for SISA.
2. A copy of a resolution of the board of directors of each Original Obligor
except for SISA approving the terms of, and the transactions contemplated
by, this Agreement.
3. A specimen of the signature of each person authorised on behalf of an
Original Obligor to execute any Finance Document or to sign or send any
document or notice in connection with any Finance Document.
4. A copy of the power of attorney of each Original Obligor under which any
Finance Document or related document is to be issued.
5. A certificate of an authorised signatory or duly appointed attorney of the
Company:
(a) confirming that utilising the Total Commitments in full would not
breach any limit binding on any Original Obligor; and
(b) certifying that each copy document specified in Part I of this
Schedule is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
Legal opinions
1. A legal opinion of Xxxxx & Overy, London legal advisers to the Arrangers
and the Facility Agent, substantially in the form of Schedule 8 (Form of
legal opinion of Xxxxx & Xxxxx), addressed to the Finance Parties.
2. If an Obligor is incorporated in a jurisdiction other than England, a legal
opinion from legal advisers in that jurisdiction acceptable to the
Arrangers, addressed to the Finance Parties.
Other documents
1. An original of the Comfort Letter, duly executed by the Company.
2. A copy of the Press Release.
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________________________________________________________________________________
3. A copy of the Offer Document.*
4. A copy of any amendment to the Offer Document.*
5. Confirmation from the Company that the Unconditional Date has occurred,
together with a copy of the certificate issued by the receiving agent to
the Company for the purposes of Note 7 to Rule 10 of the Code.*
6. (a) A copy of a European Commission RAPID or Midday Express press
release or a copy of a written communication by the European
Commission clearing the Offer; and
(b) confirmation in writing from an authorised signatory or duly appointed
attorney of the Company that the relevant waiting periods have expired
under the Xxxx Xxxxx Xxxxxx Anti Trust Improvement Act 1976 (as
amended) and any relevant regulations made under it.*
7. A list of the Material Subsidiaries as at the date of this Agreement.
__________________________
* These documents do not have to be in form and substance satisfactory to the
Facility Agent.
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PART II
FOR AN ADDITIONAL BORROWER
Additional Borrowers
1. An Accession Agreement, duly executed by the Company and the Additional
Borrower.
2. A copy of the constitutional documents of the Additional Borrower.
3. A copy of a resolution of the board of directors of the Additional Borrower
approving the terms of, and the transactions contemplated by, the Accession
Agreement.
4. A specimen of the signature of each person authorised on behalf of the
Additional Borrower to execute or witness the execution of any Finance
Document or to sign or send any document or notice in connection with any
Finance Document.
5. A certificate of an authorised signatory of the Additional Borrower:
(a) confirming that utilising the Total Commitments in full would not
breach any limit binding on it; and
(b) certifying that each copy document specified in Part II of this
Schedule is correct, complete and in full force and effect as at a
date no earlier than the date of the Accession Agreement.
6. If available, a copy of the latest audited accounts of the Additional
Borrower.
7. Evidence that the agent of the Additional Borrower (if incorporated outside
England and Wales) under the Finance Documents for service of process in
England and Wales has accepted its appointment.
Legal opinions
1. A legal opinion of Xxxxx & Overy, legal advisers to the Facility Agent,
addressed to the Finance Parties.
2. If the Additional Borrower is incorporated in a jurisdiction other than
England, a legal opinion from legal advisers in that jurisdiction,
addressed to the Finance Parties.
Other documents and evidence
1. Evidence that all expenses due and payable from the Company under this
Agreement in respect of the Accession Agreement have been paid.
2. A comfort letter, in the form of the Comfort Letter, in respect of that
Additional Borrower, duly executed by the Company.
3. A copy of any other authorisation or other document, opinion or assurance
which the Facility Agent has notified the Company is necessary in
connection with the entry into and
________________________________________________________________________________
77
________________________________________________________________________________
performance of, and the transactions contemplated by, the Accession
Agreement or for the validity and enforceability of any Finance Document.
________________________________________________________________________________
78
________________________________________________________________________________
SCHEDULE 3
FORM OF REQUEST
To: CITIBANK INTERNATIONAL plc as Facility Agent
From: [Borrower]
Date: [ ]
SCHLUMBERGER LIMITED-US$3,000,000,000 CREDIT AGREEMENT
dated [ ] February, 2001 (the "Agreement")
1. We refer to the Agreement. This is a Request.
2. We wish to borrow a Revolving Credit Loan/Term Loan* on the following
terms:
(a) Utilisation Date: [ ],
(b) Amount/currency: [ ]
(c) Term: [ ].
3. Our payment instructions are: [ ].
4. We confirm that each condition precedent under the Agreement which must
be satisfied on the date of this Request is so satisfied.
5. We confirm that we are in compliance with the requirements of Clause
19.12 (Borrower financial condition) of the Agreement and will remain in
compliance when the Loan is borrowed.**
6. This Request is irrevocable.
By:
[Borrower]
* Delete as applicable. Term Loans may only be drawn down after the Term-out
Date.
** To be included in requests by all Borrowers other than the Company.
________________________________________________________________________________
79
________________________________________________________________________________
SCHEDULE 4
CALCULATION OF THE MANDATORY COST
1. General
The Mandatory Cost is the weighted average of the rates for each Lender
calculated below by the Facility Agent on the first day of a Term. The
Facility Agent must distribute each amount of Mandatory Cost among the
Lenders on the basis of the rate for each Lender.
2. For a Lender lending from a Facility Office in the U.k.
(a) The relevant rate for a Lender lending from a Facility Office in the U.K.
is calculated in accordance with the following formulae:
for a Loan in Sterling:
AB + C(B-D) + E x 0.01 per cent. per annum
----------------------
100-(A + C)
for any other Loan:
E x 0.01 per cent. per annum
--------
300
where on the day of application of the formula:
A is the percentage of that Lender's eligible liabilities (in excess of
any stated minimum) which the Bank of England requires it to hold on a
non-interest-bearing deposit account in accordance with its cash ratio
requirements;
B is LIBOR for that Term;
C is the percentage of that Lender's eligible liabilities which the Bank
of England requires it to place as a special deposit;
D is the interest rate per annum allowed by the Bank of England on a
special deposit; and
E is the charge payable by each Lender to the Financial Services
Authority under the fees regulations (but, for this purpose, ignoring
any minimum fee required under the fees regulations) and expressed in
pounds per (Pounds)1 million of the fee base of that Lender.
(b) For the purposes of this paragraph 2:
(i) "eligible liabilities" and "special deposit" have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) "fee base" has the meaning given to it in the fees regulations; and
________________________________________________________________________________
80
(iii) "fees regulations" means The Financial Services Banking Supervision
(Fees) Regulations 2000.
(c) (i) In the application of the formulae, A, B, C and D are included as
figures and not as percentages, e.g. if A = 0.5% and B = 15%, AB is
calculated as 0.5 x 15. A negative result obtained by subtracting D
from B is taken as zero.
(ii) Each rate calculated in accordance with a formula is, if necessary,
rounded upward to four decimal places.
(d) (i) Each Lender must supply to the Facility Agent the information
required by it to make a calculation of the rate for that Lender.
The Facility Agent may assume that this information is correct in
all respects.
(ii) If a Lender fails to do so, the Facility Agent may assume that the
Lender's obligations in respect of cash ratio deposits, special
deposits and the fees regulations are the same as those of a typical
bank from its jurisdiction of incorporation with a Facility Office
in the same jurisdiction as its Facility Office.
(iii) The Facility Agent has no liability to any Party if its calculation
over or under compensates any Lender.
3. For a Lender lending from a Facility Office in a Participating Member State
(a) The relevant rate for a Lender lending from a Facility Office in a
Participating Member State is the percentage rate per annum notified by
that Lender to the Facility Agent as its cost (if any) of complying with
the minimum reserve requirements of the European Central Bank.
(b) If a Lender fails to specify a rate under paragraph (a) above, the Facility
Agent will assume that the Lender has not incurred any such cost.
4. Changes
The Facility Agent may, after consultation with the Company and the
Lenders, notify all the Parties of any amendment to this Schedule which is
required to reflect:
(a) any change in law or regulation of the United Kingdom or the
European Union relating to a cost of the type referred to in this
Schedule; or
(b) any requirement imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case,
any successor authority).
Any notification will be, in the absence of manifest error, conclusive and
binding on all the Parties.
81
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: CITIBANK INTERNATIONAL plc as Facility Agent
From: [THE EXISTING LENDER] (the "Existing Lender") and [THE NEW LENDER] (the
"New Lender")
Date: [_]
SCHLUMBERGER LIMITED - US$3,000,000,000 Credit Agreement
dated [_], 2001 (the "Agreement")
We refer to the Agreement. This is a Transfer Certificate.
1. The Existing Lender transfers by novation to the New Lender the Existing
Lender's rights and obligations referred to in the Schedule below in
accordance with the terms of the Agreement.
2. The proposed Transfer Date is [_].
3. The administrative details of the New Lender for the purposes of the
Agreement are set out in the Schedule.
4. This Transfer Certificate is governed by English law.
THE SCHEDULE
Rights and Obligations to be Transferred by Novation
[insert relevant details, including applicable Commitment (or part)]
Administrative Details of the New Lender
[insert details of Facility Office, address for notices and payment details
etc.]
[EXISTING LENDER] [NEW LENDER]
By: By:
The Transfer Date is confirmed by the Facility Agent as [_].
CITIBANK INTERNATIONAL plc
By:
82
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: CITIBANK INTERNATIONAL plc as Facility Agent
From: SCHLUMBERGER LIMITED
Date: [_]
SCHLUMBERGER LIMITED - US$3,000,000,000 CREDIT AGREEMENT
dated [_] February, 2001 (the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate.
2. We confirm that the following companies were Material Subsidiaries at
[relevant testing date]:
[_].
3. [We confirm that no Default is outstanding as at [relevant date]./1/
SCHLUMBERGER LIMITED
By:
____________________
/1/ If this statement cannot be made, the certificate should identify any
Default that is outstanding and the steps, if any, being taken to remedy
it.
83
SCHEDULE 7
PART I
FORM OF ACCESSION AGREEMENT
To: CITIBANK INTERNATIONAL plc as Facility Agent
From: SCHLUMBERGER LIMITED and [Proposed Borrower]
Date: [_]
SCHLUMBERGER LIMITED - US$3,000,000,000 Credit Agreement
dated [_] February, 2001 (the "Agreement")
We refer to the Agreement. This is an Accession Agreement.
[Name of company] of [address/registered office] agrees to become an Additional
Borrower and to be bound by the terms of the Agreement as an Additional
Borrower.
This Accession Agreement is governed by English law.
SCHLUMBERGER LIMITED
By:
[PROPOSED BORROWER]
By:
84
PART II
FORM OF RESIGNATION REQUEST
To: CITIBANK INTERNATIONAL plc as Facility Agent
From: SCHLUMBERGER LIMITED and [relevant Borrower]
Date: [_], 2001
SCHLUMBERGER LIMITED - US$3,000,000,000 Credit Agreement dated [_],
2001 (the "Agreement")
1. We refer to the Agreement. This is a Resignation Request.
2. We request that [resigning Borrower] be released from its obligations as a
Borrower under the Agreement.
3. We confirm that no Default is outstanding or would result from the
acceptance of this Resignation Request.
4. We confirm that as at the date of this Resignation Request no amount owed
by [resigning Borrower] under the Agreement is outstanding.
5. This Resignation Request is governed by English law.
SCHLUMBERGER LIMITED [Relevant Borrower]
By: By:
The Facility Agent confirms that this resignation takes effect on [_].
CITIBANK INTERNATIONAL plc
By:
85
SCHEDULE 8
FORM OF LEGAL OPINION OF XXXXX & XXXXX, LONDON
To: The Finance Parties named as
original parties to the Agreement
(as defined below).
Dear Sirs, [_], 2001
SCHLUMBERGER LIMITED - US$3,000,000,000 CREDIT AGREEMENT
dated [_] February, 2001 (the "Agreement")
We have received instructions from the Arrangers in connection with the
Agreement.
Defined Terms
In this opinion:
"English Original Obligors"
means each Original Obligor incorporated in England; and
terms defined in the Agreement have the same meaning in this opinion.
Documents and Searches
For the purposes of this opinion we have examined the following documents:
(a) a signed copy of the Agreement;
(b) a certified copy of the memorandum and articles of association and
certificate of incorporation of each English Original Obligor;
(c) a certified copy of the minutes of a meeting of the board of directors of
each English Original Obligor held on [_], 2001;
(d) a certified copy of a power of attorney dated [_], 2001 for each English
Original Obligor; and
(e) a certificate of the Company confirming, amongst other things, that the
entry into and performance of the Agreement will not contravene any limit
contained in the articles of association of any English Original Obligor.
On [_] we carried out a search of each English Original Obligor at the Companies
Registry. On [_] we made a telephone search of each English Original Obligor at
the winding-up petitions at the Companies court.
86
The above are the only documents or records we have examined and the only
searches and enquiries we have carried out for the purposes of this opinion.
Assumptions
We assume that:
(a) each English Original Obligor is not unable to pay its debts within the
meaning of section 123 of the Insolvency Act, 1986 at the time it enters
into the Agreement and will not as a result of the Agreement be unable to
pay its debts within the meaning of that section;
(b) no step has been taken to wind up or dissolve any English Original Obligor,
put any English Original Obligor into administration or appoint a receiver,
administrator, administrative receiver, trustee in bankruptcy or similar
officer in respect of it or any of its assets although the searches of the
Companies Registry referred to above gave no indication that any winding-
up, dissolution or administration order or appointment of a receiver,
administrator, administrative receiver, trustee in bankruptcy or similar
officer has been made;
(c) all signatures and documents are genuine;
(d) all documents are and remain up-to-date;
(e) the correct procedure was carried out at all the board meetings referred to
above; for example, there was a valid quorum, all relevant interests of
directors were declared and the resolutions were duly passed at each
meeting;
(f) any restrictions on the ability of a English Original Obligor to borrow or
guarantee contained in its Articles of Association would not be contravened
by the entry into and performance by it of the Agreement;
(g) the Agreement has been duly executed on behalf of each English Original
Obligor by the person(s) authorised by the resolutions passed at the
relevant meeting referred to above;
(h) the Agreement is a legally binding, valid and enforceable obligation of
each Finance Party; and
(i) no foreign law affects the conclusions stated below.
Opinion
Subject to the qualifications set out below and to any matters not disclosed to
us, it is our opinion that, so far as the present laws of England are concerned:
1. Status: Schlumberger plc is a company incorporated with limited liability
under the laws of England and is not in liquidation and Schlumberger
Investments is a company incorporated with unlimited liability under the
laws of England and is not in liquidation.
2. Powers And Authority: Each English Original Obligor has the corporate power
to enter into and perform the Agreement and has taken all necessary
corporate action to authorise the execution, delivery and performance of
the Agreement.
3. Legal Validity: The Agreement constitutes a legally binding, valid and
enforceable obligation of each Original Obligor.
87
4. Non-conflict: The entry into and performance by each English Original
Obligor of the Agreement will not violate any provision of (i) any existing
English law applicable to companies generally, or (ii) its memorandum or
articles of association.
5. Consents: No authorisations of governmental, judicial or public bodies or
authorities in England are required by any English Original Obligor in
connection with the performance, validity or enforceability of its payment
obligations under the Agreement.
6. Taxes: All payments due from any English Original Obligor under the
Agreement may be made without deduction of any U.K. Taxes, if, in the case
of interest:
(i) (A) the person that advanced the participation in the Loan to which
the interest relates was a bank for the purpose of section 349 of
the Income and Corporation Taxes Act 1988 (as currently defined
in section 840A of the Income and Corporations Tax Act 1988) at
the time the Loan was made; and
(B) the person beneficially entitled to that interest is within the
charge to U.K. corporation tax as regards that interest at the
time the interest is paid; or
(ii) the interest is payable to a Treaty Lender and the Financial
Intermediaries and Claims Office has given the necessary exemption
authorisation.
7. Registration Requirements: It is not necessary or advisable to file,
register or record the Agreement in any public place or elsewhere in
England.
8. Stamp Duties: No stamp, registration or similar tax or charge is payable in
England in respect of the Agreement.
Qualifications
This opinion is subject to the following qualifications:
(a) This opinion is subject to all insolvency and other laws affecting the
rights of creditors generally.
(b) No opinion is expressed on matters of fact.
(c) We have assumed that the obligations of each Original Obligor (other than
an English Original Obligor) are legal, valid, binding and enforceable in
its jurisdiction of incorporation. In this regard, we have relied on the
other legal opinions referred to in Part I of Schedule 2.
(d) The term "Enforceable" means that a document is of a type and form enforced
by the English courts. It does not mean that each obligation will be
enforced in accordance with its terms. Certain rights and obligations may
be qualified by the non-conclusivity of certificates, doctrines of good
faith and fair conduct, the availability of equitable remedies and other
matters, but in our view these qualifications would not defeat your
legitimate expectations in any material respect.
This opinion is given for your sole benefit and may not be relied upon by or
disclosed to any other person.
Yours faithfully
88
SCHEDULE 9
FORM OF TEG LETTER
[ON LETTERHEAD OF THE FACILITY AGENT]
To: Schlumberger Industries S.A.
Date: [_]
Dear Sirs,
Schlumberger Limited - Us$3,000,000,000 Revolving Multicurrency Credit Facility
Dated [_] February, 2001 (the "Agreement)
We refer to the Agreement.
Terms defined in the Agreement shall bear the same meaning in this letter unless
otherwise defined in this letter. References to Clauses in this letter are
references to Clauses in the Agreement.
We confirm that:
1. this is the letter referred to in Clause 10.5 (Taux Effectif Global) of the
Agreement;
2. you acknowledge that, due to the fact that interest payable under the
Agreement is to be calculated on a floating rate basis by reference to
LIBOR or EURIBOR for Terms selected by the Borrowers, it is not possible to
compute the effective global rate ("taux effectif global") for the lifetime
of the Facility;
3. in order to comply with the provisions of Articles L313-1 and L313-2 of the
French "Code de la Consommation", and only as an indication based on the
assumptions described below, examples of calculation of the effective
global rate can be given as follows:
. for a Term of one month at US$ LIBOR rate of [_]% per annum, [_]% i.e.
a rate per Term (taux de periode) of [_]%;
. for a Term of three months at US$ LIBOR rate of [_]% per annum, [_]%
i.e. a rate per Term (taux de periode) of [_]%;
. for a Term of six months at US$ LIBOR rate of [_]% per annum, [_]%
i.e. a rate per Term (taux de periode) of [_]%;
. for a Term of one month at EURIBOR rate of [_]% per annum, [_]% i.e. a
rate per Term (taux de periode) of [_]%;
. for a Term of three months at EURIBOR rate of [_]% per annum, [_]%
i.e. a rate per Term (taux de periode) of [_]%;
. for a Term of six months at EURIBOR rate of [_]% per annum, [_]% i.e.
a rate per Term (taux de periode) of [_]%;
89
. for a Term of six months at EURIBOR rate of [ ]% per annum, [ ]% i.e.
a rate per Term (taux de periode) of [ ]%;
The above rates are given on an indicative basis and on the basis (i) that
drawdown for the full amount of the Total Commitment has been made, (ii) that
the LIBOR/EURIBOR rate, expressed as an annual rate, is as fixed on [DATE],
(iii) that the Margin is 0.35% per annum and (iv) that the various fees payable
by you on the terms of the Agreement are paid. These rates are not binding on
the Finance Parties.
We should be grateful if you would confirm your acceptance of the terms of this
letter by signing and returning to us the enclosed copy.
This letter is designated a Finance Document.
Yours faithfully,
_______________________________
CITIBANK INTERNATIONAL plc
as Facility Agent
We agree to the above.
_______________________________
SCHLUMBERGER INDUSTRIES S.A.
90
SCHEDULE 10
FORM OF COMFORT LETTER
[ON THE LETTERHEAD OF SCHLUMBERGER LIMITED]
[ ], 2001
To: The Finance Parties under the Agreement
Gentlemen,
You have made available to Schlumberger Public Limited Company, Schlumberger
Industries S.A. and Schlumberger Investments (the "Companies") committed
revolving credit facilities up to a maximum of the following sub-limits:
(a) in relation to Schlumberger Public Limited Company, $1,000,000,000;
(b) in relation to Schlumberger Industries S.A., $1,500,000,000;
(c) in relation to Schlumberger Investments, $1,000,000,000; and
(d) in relation to Schlumberger Public Limited Company and Schlumberger
Investments together, an aggregate of $1,000,000,000.
(the "Facilities") under a credit agreement dated [ ], 2001 (the
"Agreement").
We hereby confirm that we are aware of this arrangement and that it bears our
full approval. Although this letter should not be construed as a guarantee, we
also confirm that it is our policy that the Companies should conduct their
affairs with a view towards maintaining sufficient financial resources to meet
their obligations under the Facility.
We intend to maintain directly or indirectly a 100% holding of the issued equity
share capital of the Companies so long as any amount of the Facility remains
outstanding.
We also confirm that in the event we wish to reduce our beneficial holding of
the issued equity share capital of the Companies, we should give you reasonable
notice of our intentions, and we agree to arrange a suitable mutually
satisfactory substitute arrangement.
The statements made in this letter are valid until 31st March, 2003.
Sincerely,
For
Schlumberger Limited
91
SCHEDULE 11
FORM OF SUBORDINATION AGREEMENT
92
SIGNATORIES
Company
SCHLUMBERGER LIMITED
By:
Original Borrowers
SCHLUMBERGER PUBLIC LIMITED COMPANY
By:
SCHLUMBERGER INDUSTRIES SA
By:
SCHLUMBERGER INVESTMENTS
By:
Arrangers
X.X. XXXXXX PLC
By:
BNP PARIBAS
By:
93
Arrangers (continued)
SALOMON BROTHERS INTERNATIONAL LIMITED
By:
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
By:
Original Lenders
THE CHASE MANHATTAN BANK
By:
BNP PARIBAS
By:
CITIBANK, N.A.
By:
XXXXXX BROTHERS BANKHAUS AG, LONDON BRANCH
By:
Facility Agent
CITIBANK INTERNATIONAL plc
By:
94
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[LOGO] CREDIT AGREEMENT
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FACILITY TYPE TERM LOAN/REVOLVING CREDIT
--------------------------------------------------------------------------------
OBLIGORS MULTIPLE BORROWERS/SINGLE GUARANTOR
--------------------------------------------------------------------------------
CURRENCY MULTICURRENCY
--------------------------------------------------------------------------------
SYNDICATED/SINGLE SYNDICATED
BANK
--------------------------------------------------------------------------------
JURISDICTION UK AND OVERSEAS
--------------------------------------------------------------------------------
SECURITY UNSECURED
--------------------------------------------------------------------------------
DATE OF ASSEMBLY 6/th/ February 2001
--------------------------------------------------------------------------------
AUTHOR
--------------------------------------------------------------------------------
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