CONFORMED COPY
EUR 12,000,000,000
FACILITY AGREEMENT
dated 25 January 2004
for
SANOFI-SYNTHELABO
arranged by
BNP PARIBAS
XXXXXXX XXXXX CREDIT PRODUCTS
as Mandated Lead Arrangers
with
BNP PARIBAS
acting as Agent
[FRESHFIELDS BRUCKHAUS XXXXXXXX LOGO]
CONTENTS
CLAUSE PAGE
1. Definitions and interpretation................................................................. 2
2. The Facilities................................................................................. 16
3. Purpose........................................................................................ 16
4. Conditions of Utilisation...................................................................... 17
5. Utilisation.................................................................................... 21
6. Optional Currencies............................................................................ 23
7. Repayment...................................................................................... 24
8. Prepayment and cancellation.................................................................... 25
9. Interest....................................................................................... 32
10. Interest Periods............................................................................... 35
11. Changes to the calculation of interest......................................................... 36
12. Fees........................................................................................... 37
13. Tax gross up and indemnities................................................................... 39
14. Increased costs................................................................................ 42
15. Other indemnities.............................................................................. 43
16. Mitigation by the Lenders...................................................................... 44
17. Costs and expenses............................................................................. 45
18. Representations................................................................................ 46
19. Information undertakings....................................................................... 49
20. Financial covenants............................................................................ 51
21. General undertakings........................................................................... 52
22. Events of Default.............................................................................. 57
23. Changes to the Lenders......................................................................... 62
24. Changes to the Obligors........................................................................ 65
25. Role of the Agent and the Mandated Lead Arrangers.............................................. 67
26. Conduct of business by the Finance Parties..................................................... 72
27. Sharing among the Finance Parties.............................................................. 72
28. Payment mechanics.............................................................................. 74
29. Set-off........................................................................................ 76
30. Notices........................................................................................ 76
31. Calculations and certificates.................................................................. 78
32. Partial invalidity............................................................................. 78
33. Remedies and waivers........................................................................... 78
34. Confidentiality................................................................................ 79
35. Amendments and waivers......................................................................... 80
36. Governing law.................................................................................. 81
37. Enforcement - Jurisdiction of French courts.................................................... 81
38. Election of domicile........................................................................... 81
THIS AGREEMENT is dated 25 January 2004 and made between:
(1) SANOFI-SYNTHELABO, a French company whose registered office is at 000
xxxxxx xx Xxxxxx, 00000 Xxxxx, registered under identification number
395 030 844 RCS Paris (the "COMPANY");
(2) BNP PARIBAS, a French company whose registered office is at 00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered under identification
number 662 042 449 RCS Paris and XXXXXXX XXXXX CREDIT PRODUCTS, a
limited liability company registered under the laws of the State of
Delaware whose registered office is at Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, XXX, as mandated lead arrangers,
underwriters and joint-book runners (whether acting individually or
together the "MANDATED LEAD ARRANGERS");
(3) BNP PARIBAS, a French company whose registered office is at 00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered under identification
number 662 042 449 RCS Paris and XXXXXXX XXXXX CREDIT PRODUCTS, a
limited liability company registered under the laws of the State of
Delaware whose registered office is at Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, XXX, as lenders (the "ORIGINAL
LENDERS");
(4) BNP PARIBAS, a French company whose registered office is at 00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered under identification
number 662 042 449 RCS Paris, as agent of the other Finance Parties
(the "AGENT"); and
(5) BNP PARIBAS, a French company whose registered office is at 00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered under identification
number 662 042 449 RCS Paris, as presenting bank for the purpose of
Clause 5 (Utilisation) only (the "PRESENTING BANK").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out
in Schedule 6 (Form of Accession Letter).
"ACCEPTED SHARES" means the Shares which are to be acquired by the
Company following the definitive tendering to the Offer of such Shares
by their holders.
"ACQUISITION" means the acquisition of the Shares in accordance with
the Offer.
"ACQUISITION LOAN" means any Loan made for the purpose of financing an
Acquisition Payment.
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"ACQUISITION PAYMENT" means a payment of the amount of cash
consideration (determined by reference to the cash consideration
payable per Shares under the Offer in respect of Accepted Shares)
required to be paid by or on behalf of the Company under the Offer on
the Settlement Date relating to Accepted Shares.
"ADDITIONAL BORROWER" means Target provided that it accedes to this
Agreement and any company which becomes an Additional Borrower in
accordance with Clause 24 (Changes to the Obligors).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(Mandatory Cost formulae).
"ADDITIONAL OFFER" means any (i) additional offer resulting from the
reopening of the Original Offer for additional acceptances which may be
initiated by the Company following the Original Offer period in
accordance with the provisions of article 5-2-3-1 of the Reglement
General du CMF or (ii) distinct offer (offre publique simplifiee) made
by the Company for all of the then outstanding Shares of the Target
following the Original Offer period in accordance with the provisions
of Chapter 3 of Titre III of the Reglement General du CMF.
"ADDITIONAL OFFER RESULT NOTICE" means a notice published by the AMF of
the final outcome of any Additional Offer (avis de resultat) specifying
(amongst other things) the number of Shares that have been tendered to
the Offer by their holders and which are to be acquired by the Company
pursuant to the Additional Offer.
"ADDITIONAL OFFER SETTLEMENT DATE" means the date on which an
Acquisition Payment is to be made in respect of any Additional Offer.
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
Paris foreign exchange market at or about 11:00 a.m. on a particular
day.
"AMF" means the Autorite des marches financiers.
"ANNOUNCEMENT DATE" means the date of filing of the Original Offer with
the AMF, which date shall occur no later than 10 Business Days
following the signing of this Agreement unless otherwise agreed by the
Lenders.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means (in each case, subject to Clause 8.4
(Mandatory Cancellation)):
(a) in relation to Facility A, the period from and including the
date of this Agreement to and including the Facility A Final
Maturity Date;
(b) in relation to Facility B, the period from and including the
date of this Agreement to and including the Facility B Final
Maturity Date; and
(c) in relation to Facility C, the period from and including the
date of this Agreement to and including the Facility C Final
Maturity Date.
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"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any Loans that are due to be
made under that Facility on or before the proposed Utilisation
Date, other than, in relation to Facility C only, that
Lender's participation in any Facility C Loans that are due to
be repaid or prepaid on or before the proposed Utilisation
Date.
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
that Facility.
"BASE CURRENCY" means Euro.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, the amount
specified in the Utilisation Request delivered by a Borrower (or, as
the case may be, by the Presenting Bank) for that Loan (or, if the
amount requested is not denominated in the Base Currency, that amount
converted into the Base Currency at the Agent's Spot Rate of Exchange
on the date which is three Business Days before the Utilisation Date
or, if later, on the date the Agent receives the Utilisation Request)
adjusted to reflect any repayment, prepayment, consolidation or
division of the Loan.
"BORROWER" means the Company or any Additional Borrower unless it has
ceased to be a Borrower in accordance with Clause 24 (Changes to the
Obligors).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (calculated without taking into account the
Facility A Margin, the Facility B Margin, or, as applicable,
the Facility C Margin) which a Lender should have received for
the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the
current Interest Period in respect of that Loan or Unpaid Sum,
had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of
the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and Paris, and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
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"COMMITMENT" means a Facility A Commitment, a Facility B Commitment or
a Facility C Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 8 (Form of Compliance Certificate).
"COMPANY'S CONSIDERATION SHARES" means the new shares of the Company to
be offered to Target shareholders in consideration of the Shares
tendered to the Offer pursuant to the terms thereof.
"CONFIDENTIAL INFORMATION" means any information to be delivered by the
Company pursuant to Clauses 19 (Information Undertakings) and 21.8
(Offer) but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach by
any Finance Party of this Agreement or (b) is known by the Finance
Parties (or any of them) before the date the information is disclosed
to such Finance Party(ies) by the Company or is lawfully obtained by
any Finance Party after that date, other than from a source which is
connected with the Company and which, in either case, as far as the
relevant Finance Party is aware, has not been obtained in violation of,
and is not otherwise subject to, any obligation of confidentiality.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in the form set out in Schedule 10 (Form of
Confidentiality Undertaking).
"CONSOLIDATED SUBSIDIARY" means any company which is consolidated by
way of "integration globale" in the audited consolidated financial
statements of the Company from time to time.
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 22 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"ENGAGEMENT LETTER" means the engagement letter dated on or about the
date of this Agreement between the Mandated Lead Arrangers and the
Company in relation to the Facility.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
European interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 22 (Events of Default).
"FACILITY" means Facility A, Facility B and/or Facility C as the case
may be.
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
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"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility A Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility A Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY A FINAL MATURITY DATE" means the date on which all the
Facility A Loans shall be repaid in full, being the Facility A Original
Final Maturity Date or, upon exercise of the First Extension Option,
the Facility A First Extended Final Maturity Date or upon the exercise
of the Second Extension Option, the Facility A Second Extended Final
Maturity Date.
"FACILITY A FIRST EXTENDED FINAL MATURITY DATE" means the date falling
18 Months after the date of this Agreement (or if that Day is not a
Business Day, the preceding Business Day).
"FACILITY A LOAN" means a loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"FACILITY A MARGIN" means the margin applicable to Facility A Loan as
determined in accordance with Clause 9.1 (Facility A Calculation of
Interest).
"FACILITY A ORIGINAL FINAL MATURITY DATE" means the date falling 364
days after the date of this Agreement (or if that Day is not a Business
Day, the preceding Business Day).
"FACILITY A SECOND EXTENDED FINAL MATURITY DATE" means the date falling
24 Months after the date of this Agreement (or if that Day is not a
Business Day, the preceding Business Day).
"FACILITY B" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY B LOAN" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
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"FACILITY B MARGIN" means the margin applicable to Facility B Loan as
determined in accordance with Clause 9.2 (Facility B Calculation of
Interest).
"FACILITY B FINAL MATURITY DATE" means the date falling three years
after the date of this Agreement (or if that Day is not a Business Day,
the preceding Business Day).
"FACILITY C" means the multicurrency revolving loan facility made
available under this Agreement as described in Clause 2 (The
Facilities).
"FACILITY C COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility C
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility C Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility C Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY C FINAL MATURITY DATE" means the date falling five years
after the date of this Agreement (or if that Day is not a Business Day,
the preceding Business Day).
"FACILITY C LOAN" means a loan made or to be made under Facility C or
the principal amount outstanding for the time being of that loan.
"FACILITY C MARGIN" means the margin applicable to Facility C Loan as
determined in accordance with Clause 9.3 (Facility C Calculation of
Interest).
"FACILITY OFFICE" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arrangers and the Company (or
the Agent and the Company) setting out any of the fees referred to in
Clause 12 (Fees).
"FINANCE DOCUMENT" means this Agreement, the Engagement Letter, any Fee
Letter, any Accession Letter, any Guarantee, any Resignation Letter and
any other document designated as such by the Agent and the Company.
"FINANCE PARTY" means the Agent, a Mandated Lead Arranger or a Lender.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
- 7 -
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken
into account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a)
to (h) above.
"FIRST EXTENSION OPTION" means the option available to the Company to
request pursuant to clause 7.1(b) that the date on which all Facility A
Loans shall be repaid in full be extended until the Facility A First
Extended Final Maturity Date.
"GAAP" means, in relation to any financial statements, generally
accepted accounting principles in the jurisdiction in which the entity
to which such financial statements relate is incorporated.
"GROUP" means the Company and its Subsidiaries from time to time.
"GUARANTEE" means a first demand guarantee (garantie a premiere
demande) given by the Company in the form set out in Schedule 12 (Form
of Guarantee).
"GUARANTOR" means the Company in its capacity as guarantor under a
Guarantee.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INFORMATION MEMORANDUM" means the document in the form approved by the
Company concerning the Group which, at the Company's request and on its
behalf, will be prepared in relation to this transaction and
distributed by the Mandated Lead Arrangers to selected financial
institutions for the purpose of the syndication of the Facility.
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.7
(Default interest).
"LENDER" means:
(a) any Original Lender; and
- 8 -
(b) any bank or financial institution which has become a Party in
accordance with Clause 23 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan in an Optional Currency:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at
its request quoted by the Reference Banks to leading banks in
the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan.
"LOAN" means a Facility A Loan, a Facility B Loan or a Facility C Loan.
"L'OREAL" means L'Oreal SA, a French company whose registered office is
at 00 xxx Xxxxxx, 00000 Xxxxx, registered under identification number
632 012 100 RCS Paris.
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders
whose Commitments aggregate more than 66 2/3% of the Total
Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 66 2/3% of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Loans then outstanding aggregate more than 66 2/3% of all
the Loans then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"MARGIN ADJUSTMENT DATE" means the date falling six Months following
the first Utilisation Date.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition or business of either the Company or the Group
taken as a whole and (b) on the ability of the Company or the Obligors
taken as a whole to perform and comply with their obligations under
this Agreement and any other Finance Documents to which they are
respectively party.
"MATERIAL SUBSIDIARY" means, at any time, any Consolidated Subsidiary
of the Company which is named in the list of Subsidiaries set out in
Schedule 13 (Material Subsidiaries) and, following the date of delivery
of the Company's annual audited consolidated financial statements
pursuant to Clause 19.1(a), any Consolidated Subsidiary of the Company
whose net turnover (excluding turnover arising from intra-group
transactions) is equal to or greater than 5 per cent. (5%) of the
consolidated net turnover of the Group or whose net result (as set out
in its relevant annual audited financial statements) for any of the
last three financial years was equal to or greater than 5 per cent.
(5%) of the Net Result of the Group for the
- 9 -
corresponding financial year, such determination being made by
reference to the most recent annual financial statements of that
Consolidated Subsidiary, consolidated where applicable, used for the
purpose of the most recent annual audited consolidated financial
statements of the Company, as certified on the first and each
subsequent date of delivery of the Company's annual audited
consolidated financial statements for the time being of the Company and
provided that (i) a joint-venture company whose voting rights are held
equally or in almost equal proportion by the Company and another entity
which is not a member of the Group shall constitute a Material
Subsidiary only if it cumulatively exceeds both thresholds set out
above in respect of net turnover and net result and (ii) all Material
Subsidiaries together with the Company shall represent in aggregate not
less than 75 per cent. or more of the consolidated net turnover or Net
Result of the Group.
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"MOODY'S" means Xxxxx'x Investors Services (or any successor in title
of similar standing).
"NET RESULT" means the resultat net de l'ensemble consolide as set out
in the Company's Original Financial Statements.
"OBLIGOR" means a Borrower or the Guarantor.
"OFFER" means the Original Offer and, as the case may be, the
Additional Offer and/or the Squeeze-Out Offer.
"OPTIONAL CURRENCY" means US dollars, Sterling and Japanese Yen.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Company, its audited consolidated financial
statements together with its audited financial statements for
the financial year ended 31 December 2002.
(b) in relation to each Additional Borrower, its latest audited
financial statements together with its latest audited
consolidated financial statements (if any) available at the
date of its accession.
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"ORIGINAL OFFER" means an offer for all of the Shares of Target to be
filed by the Company on the Announcement Date (as may be amended in
accordance with Clause 21.8 (Offer) and includes any increased offer
(surenchere) made in accordance with such Clause 21.8 (Offer)).
"ORIGINAL OFFER RESULT NOTICE" means a notice published by the AMF of
the final outcome of the Original Offer (avis de resultat) specifying
(amongst other things) whether the Original Offer has been successful
and the number of Shares that have been tendered to the Offer by their
holders and which are to be acquired by the Company pursuant to that
Original Offer.
"ORIGINAL OFFER SETTLEMENT DATE" means the date on which an Acquisition
Payment is to be made in respect of the Original Offer.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
Economic and Monetary Union.
"PARTY" means a party to this Agreement.
"PRESENTING BANK" means, in relation to the Offer, BNP Paribas as
banque presentatrice providing the guarantee referred to in article
5-1-4 of the Reglement General du CMF.
"QUALIFYING LENDER" has the meaning given to it in Clause 13 (Tax
gross-up and indemnities).
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day
of that period;
(b) (if the currency is sterling), the first day of that period;
or
(c) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"REFERENCE BANKS" means, in relation to EURIBOR, the principal Paris
offices of BNP Paribas, HSBC-CCF and Citibank N.A. and, in relation to
LIBOR, the principal office in London of BNP Paribas, HSBC and Citibank
N.A. or such other banks as may be appointed by the Agent in
consultation with the Company.
"RELEVANT INTERBANK MARKET" means in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"REPEATING REPRESENTATIONS" means each of the representations set out
in Clause 18 other than those set out in Clauses 18.4 (Power and
authority), 18.10 (No Misleading information), 18.11 (Financial
Statements).
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"RESERVATIONS" means any general principles of French law limiting
rights and obligations arising under any agreement which are
specifically referred to in the legal opinion to be delivered by
Freshfields Bruckhaus Xxxxxxxx to the Finance Parties.
"RESIGNATION LETTER" means a letter substantially in the form set out
in Schedule 7 (Form of Resignation Letter).
"ROLLOVER LOAN" means one or more Facility C Loans:
(a) made or to be made on the same day that a maturing Facility C
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility C Loan;
(c) in the same currency as the maturing Facility C Loan (unless
it arose as a result of the operation of Clause 6.2
(Unavailability of a currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility C Loan.
"SCREEN RATE" means:
(a) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period; and
(b) in relation, to LIBOR, the British Bankers Association
Interest Settlement Rate for the relevant currency and period
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Company and the Lenders.
"SECOND EXTENSION OPTION" means the option available to the Company to
request pursuant to clause 7.1(c) that the date on which all Facility A
Loans shall be repaid in full be extended until the Facility A Second
Extended Final Maturity Date.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 10
(Interest Periods) in relation to a Facility A and Facility B.
"SETTLEMENT ACCOUNT" means the account confirmed by the Presenting Bank
to the Agent in the relevant Utilisation Request as being the account
into which an Acquisition Payment is to be made.
"SETTLEMENT DATE" means a date on which an Acquisition Payment is to be
made.
"SHARES" means all the issued shares of Target (including any shares in
Target issued or to be issued whilst an Offer remains open for
acceptance).
- 12 -
"S&P" means Standard & Poors Rating Services, a division of The
XxXxxx-Xxxx Inc (or any successor in title of similar standing).
"SPECIFIED TIME" means a time determined in accordance with Schedule 11
(Timetables).
"SQUEEZE-OUT OFFER" means any offre publique de retrait followed by an
offre publique de retrait obligatoire which might be made by the
Company for all of the then outstanding Shares of the Target, following
the completion of the Original Offer, or as the case may be, the
Additional Offer.
"SQUEEZE-OUT OFFER ACQUISITION PAYMENT" means a payment of the amount
of cash consideration required to be paid by or on behalf of the
Company under the Squeeze-Out Offer on a Squeeze-Out Settlement Date in
respect of the Shares tendered to the Squeeze-Out Offer.
"SQUEEZE-OUT SETTLEMENT DATE" means a date on which a Squeeze-Out
Acquisition Payment is to be made.
"SUBSIDIARY" means, in relation to any company, another company which
is controlled by it within the meaning of article L.233-3 of the French
Code de Commerce.
"SYNDICATION DATE" means the date falling on the earlier of (i) the
date upon which the Mandated Lead Arrangers notify the Company that the
syndication of the Facility has been completed or (ii) 31 December
2004.
"TARGET" means Aventis SA, a French company whose registered office is
at 00 xxxxxx xx x'Xxxxxx, 00000 Xxxxxxxxxxxx, registered under
identification number 000 000 000 RCS Strasbourg.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement
of payments in euro.
"TARGET GROUP" means Target and its Subsidiaries from time to time.
"TAX" means any tax, levy, impost, duty or other charge or withholding
of a similar nature imposed or collected by any country or State or by
any local, national or supranational body, authority or organisation
(including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).
"TOTAL" means Total SA, a French company whose registered office is at
0 xxxxx xx xx Xxxxxxx, Xx Defense 6, 92400 Courbevoie, registered under
identification number 542 051 180 RCS Nanterre.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments, the Total Facility B Commitments and the Total Facility C
Commitments, being EUR 12,000,000,000 at the date of this Agreement.
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being EUR 4,000,000,000 at the date of this Agreement.
- 13 -
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments, being EUR 4,000,000,000 at the date of this Agreement.
"TOTAL FACILITY C COMMITMENTS" means the aggregate of the Facility C
Commitments, being EUR 4,000,000,000 at the date of this Agreement.
"TRANSFER AGREEMENT" means an agreement substantially in the form set
out in Schedule 5 (Form of Transfer Agreement) or any other form agreed
between the Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Agreement; and
(b) the date on which the Agent executes the Transfer Agreement.
"UNPAID SUM" means any sum due and payable but unpaid by a Borrower
under the Finance Documents.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in any of the forms
set out in Part I of Schedule 3 (Requests).
"VAT" means value added tax.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this
Agreement to:
(i) the "AGENT", any "MANDATED LEAD ARRANGER", any
"FINANCE PARTY", any "LENDER", any "OBLIGOR" or any
"PARTY" shall be construed so as to include its
successors in title, permitted assigns and permitted
transferees;
(ii) "ASSETS" includes present and future properties,
revenues and rights of every description;
(iii) "CORPORATE RECONSTRUCTION" includes in relation to
any company any contribution of part of its business
in consideration of shares (apport partiel d'actifs)
and any demerger (scission) implemented in accordance
with articles L.236-1 to L.236-24 of the French Code
de Commerce;
(iv) a "FINANCE DOCUMENT" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
(v) "GROSS NEGLIGENCE" means "faute lourde";
(vi) a "GUARANTEE" includes any "cautionnement", "aval"
and any "garantie" which is independent from the debt
to which it relates;
- 14 -
(vii) "INDEBTEDNESS" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(viii) "MERGER" includes any fusion implemented in
accordance with articles L.236-1 to L.236-24 of the
French Code de Commerce;
(ix) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state
or any grouping (whether or not having separate legal
personality) or two or more of the foregoing;
(x) a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(xi) a "SECURITY INTEREST" includes any type of security
(surete reelle) and transfer by way of security;
(xii) "SUCCESSFUL" means in relation to the Original Offer
that the conditions relating to such offer have been
met (including the condition relating to the
acceptance of the Original Offer by holders of Shares
representing a minimum of 50% of the share capital of
Target) and that it will have a "suite positive"
within the meaning of article 5-2-3 of the Reglement
General du CMF;
(xiii) "TRUSTEE, FIDUCIARY AND FIDUCIARY DUTY" has in each
case the meaning given to such term under any
applicable law;
(xiv) "WILFUL MISCONDUCT" means "dol";
(xv) a provision of law is a reference to that provision
as amended or re-enacted; and
(xvi) unless a contrary indication appears, a time of day
is a reference to Paris time.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "CONTINUING" if
it has not been remedied or waived and an Event of Default is
"CONTINUING" if it has not been waived.
- 15 -
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available:
(a) to the Company only, a Euro term loan facility in an aggregate
maximum amount equal to the Total Facility A Commitments;
(b) to the Company only, a Euro term loan facility in an aggregate
maximum amount equal to the Total Facility B Commitments; and
(c) to the Company and the Additional Borrowers (subject to
provisions of Clause 24.2 (Additional Borrowers)), a
multicurrency revolving loan facility in an aggregate maximum
amount equal to the Total Facility C Commitments.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance
Documents are several (conjointes et non solidaires). Failure
by a Finance Party to perform its obligations under the
Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party
under the Finance Documents.
(b) The rights of each Finance Party under or in connection with
the Finance Documents are separate and independent rights and
any debt arising under the Finance Documents to a Finance
Party from a Borrower shall be a separate and independent
debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 PURPOSE
(a) The Company shall apply all amounts borrowed by it under
Facility A and Facility B towards the financing of the
Acquisition Payment.
(b) The Company shall apply all amounts borrowed by it under
Facility C towards:
(i) the financing of the reasonable fees, costs and
expenses incurred by it in connection with the Offer;
(ii) the financing of the general corporate purpose of the
Group;
(iii) the refinancing of existing indebtedness of Target;
or,
- 16 -
(iv) any other purpose which may be agreed from time to
time between the Company and the Majority Lenders.
(c) Each Additional Borrower shall apply all amounts borrowed by
it under Facility C towards:
(i) the financing of its general corporate purpose; and
(ii) the refinancing of its existing indebtedness.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
(a) No Utilisation Request may be delivered unless the Agent has
received all of the documents and other evidence listed in
Part I of Schedule 2 (Conditions precedent to signing) in form
and substance satisfactory to the Agent. The Agent shall
notify the Company and the Lenders promptly upon being so
satisfied.
(b) No Utilisation shall be made under any Facility unless the
Original Offer is successful.
4.2 CONDITIONS PRECEDENT TO UTILISATION UNDER FACILITY A AND FACILITY B
(a) On each Original Offer Settlement Date, no Utilisation shall
be made under Facility A or Facility B unless the Agent has
received all of the documents and other evidence listed in
Section 1 of Part II of Schedule 2 (Conditions precedent to
Utilisation on each Original Settlement Date) in form and
substance satisfactory to the Agent. The Agent shall notify
the Company and the Lenders promptly upon being so satisfied.
(b) On each Additional Offer Settlement Date (if any), no
Utilisation shall be made under Facility A or Facility B
unless the Agent has received all of the documents and other
evidence listed in Section 2 of Part II of Schedule 2
(Conditions precedent to Utilisation on each Additional Offer
Settlement Date) in form and substance satisfactory to the
Agent. The Agent shall notify the Company and the Lenders
promptly upon being so satisfied.
(c) On each Squeeze-Out Offer Settlement Date (if any), no
Utilisation shall be made under Facility A or Facility B
unless the Agent has received all of the documents and other
evidence listed in Section 3 of Part II of Schedule 2
(Conditions precedent to Utilisation on each Squeeze-Out Offer
Settlement Date) in form and substance satisfactory to the
Agent. The Agent shall notify the Company and the Lenders
promptly upon being so satisfied.
(d) Following the expiry of the Certain Funds Period, no
Utilisation shall be made under Facility A or Facility B if:
(i) an Event of Default or a Default is continuing or
would result from the proposed Loan;
- 17 -
(ii) any Repeating Representations to be made by the
Company is untrue in any material respects.
4.3 CONDITIONS PRECEDENT TO UTILISATION UNDER FACILITY C
(a) No Utilisation shall be made under Facility C prior to the day
on which the first Settlement Date occurs.
(b) No Utilisation shall be made under Facility C if:
(i) an Event of Default or a Default is continuing or
would result from the proposed Facility C Loan;
(ii) any Repeating Representations to be made by each
Obligor is untrue in any material respects.
4.4 CERTAIN FUNDS PERIOD
(a) Notwithstanding any term of this Agreement, during the Certain
Funds Period, the Lenders shall not be entitled to:
(i) refuse to participate in or make available any
Acquisition Loan;
(ii) cancel a Commitment relating to any Acquisition Loan;
or
(iii) exercise any right of rescission or similar right or
remedy which it may have in relation to any
Acquisition Loan,
except as provided below in this Clause 4.4.
(b) Paragraph (a) does not apply if, in the opinion of the
Majority Lenders:
(i) a Major Representation is not correct or will not be
correct immediately after the relevant Acquisition
Loan is made; or
(ii) a Major Default is continuing or will result from the
making of the relevant Acquisition Loan.
(c) Paragraph (a) does not apply if the Company has not delivered
all of the documents and other evidence required to be
delivered pursuant to clause 4.2 (Conditions Precedent to
Utilisation under Facility A and Facility B) in form and
substance satisfactory to the Agent.
(d) Nothing in this Clause 4.4 will affect the right of any Lender
to refuse to participate in or make available any Acquisition
Loan or to cancel a Commitment relating thereto if it is
unlawful for such Lender to perform any of its obligations
under the Finance Documents.
(e) Nothing in this Clause 4.4 will affect the rights of any
Finance Party in respect of any Default which is continuing
upon expiry of the Certain Funds Period irrespective of
whether that Default occurred during the Certain Funds Period
or not.
(f) In any case, the Company shall comply with the requirements
set out in Clause 5 (Utilisation).
- 18 -
(g) In this Clause 4.4:
"CERTAIN FUNDS PERIOD" means the period beginning on the
Announcement Date and ending 11 Months following the
Announcement Date.
"MAJOR BREACH" means a breach of:
(i) Clause 21.2 (Compliance with laws);
(ii) Clause 21.3 (Negative pledge) but excluding any
breach by a member of the Target Group;
(iii) Clause 21.4 (Disposals);
(iv) Clause 21.8 (Offer),
provided that in respect of paragraph (i), (ii) and (iii)
above, such breach shall have or is reasonably likely to have
a Material Adverse Effect.
"MAJOR DEFAULT" means any of the following Events of Default:
(i) Clause 22.1 (Non-payment);
(ii) Clause 22.3 (Other obligations) but only insofar
as it constitutes a Major Breach;
(iii) Clause 22.4 (Misrepresentation) but only insofar
as it relates to a Major Representation;
(iv) Clause 22.5 (Cross-Default) but only if it relates
to a payment default under the relevant Financial
Indebtedness if in excess of EUR 200,000,000 and
incurred by a member of the Group (excluding for
the avoidance of doubt any member of the Target
Group) and the creditor of such Financial
Indebtedness has notified its intent to accelerate
such Financial Indebtedness; or,
(v) Clauses 22.6 (Insolvency) and 22.7 (Insolvency
proceedings) but only insofar as it relates to the
Company, any of its Material Subsidiaries or
Target.
"MAJOR REPRESENTATION" means any of the following
representations contained in this Agreement:
(i) Clause 18.1 (Status);
(ii) Clause 18.2 (Binding Obligations);
(iii) Clause 18.3 (Non-contravention with other
obligations);
(iv) Clause 18.4 (Power and authority); or
(v) Clause 18.11 (a) and (b) (Financial Statements).
- 19 -
4.5 MAXIMUM NUMBER OF LOANS
(a) The Presenting Bank may deliver as many Utilisation Requests
as necessary in relation to Acquisition Loans for the purpose
of achieving payment of Acquisition Payment in accordance with
timetables and prescriptions set out by any relevant market
authority.
(b) A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation 10 or more Facility C Loans
would be outstanding.
(c) Any Loan made by a single Lender under Clause 6.2
(Unavailability of a currency) shall not be taken into account
in this Clause 4.5.
- 20 -
SECTION 3
UTILISATION
5. UTILISATION
5.1 UTILISATION UNDER FACILITY A AND FACILITY B
(a) Utilisation shall be made under Facility A and Facility B on a
Settlement Date only and shall be made under each such
Facility on a prorata basis (if such Utilisation is made prior
to the Facility A Final Maturity Date).
(b) Facility A or Facility B may be utilised by delivery to the
Agent, by no later than 3 Business Days prior to the relevant
Settlement Date, of a duly completed Utilisation Request
issued by the Presenting Bank.
(c) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Settlement Date;
(iii) the currency is the Base Currency;
(iv) the amount of the Utilisation is no greater than the
Available Facility;
(v) the proposed Interest Period complies with Clause 10
(Interest Periods); and
(vi) it indicates the Settlement Account to which the
relevant Loan shall be paid.
(d) Only one Loan may be requested in each Utilisation Request.
5.2 UTILISATION UNDER FACILITY C
(a) A Borrower may utilise Facility C by delivery to the Agent of
a duly completed Utilisation Request no later than 3 Business
Days prior to the relevant Utilisation Date.
(b) No Utilisation shall be made under Facility C prior to the day
on which the first Settlement Date occurs.
(c) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day
within the Availability Period applicable to Facility
C;
(ii) the currency of the Utilisation comply with Clause
5.2.(e);
(iii) the amount of the Utilisation comply with Clause
5.2.(f); and
- 21 -
(iv) the proposed Interest Period complies with Clause 10
(Interest Periods).
(d) Only one Loan may be requested in each Utilisation Request.
(e) The currency specified in a Utilisation Request must be the
Base Currency or an Optional Currency.
(f) The amount of the proposed Facility C Loan must be in a
minimum Base Currency Amount of EUR 100,000,000 (and, in
integral multiple Base Currency Amounts of EUR 20,000,000) or,
if less, the Available Facility.
(g) Unless otherwise agreed in writing by the Majority Lenders, no
Utilisation by an Additional Borrower may take place if as a
result of such Utilisation, the aggregate Facility C Loans in
respect of such Additional Borrower would exceed (i) for
Target, EUR 4,000,000,000, and (ii) for any other Additional
Borrower, the borrowing limit agreed by the Majority Lenders
at the time of the accession to this Agreement of such
Additional Borrower as provided for in Clause 24.2 (Additional
Borrowers).
5.3 UTILISATION REQUEST BY THE PRESENTING BANK
In relation to the financing of any Acquisition Payment and each time
any such Acquisition Payment is requested to be paid in accordance with
applicable timetables and prescriptions set out by any relevant market
authority, Utilisation Requests shall be made solely by the Presenting
Bank in accordance with Clause 5.1 (Utilisation under Facility A and
Facility B).
To that effect and in consideration of the Presenting Bank providing
the guarantee referred to in article 5-1-4 of the Reglement General du
CMF, the Company hereby irrevocably waives any rights to make any
Utilisation for the purpose of financing any Acquisition Payment and
delegates all such rights to the Presenting Bank which accepts such
delegation and agrees to be a party to this Agreement for this sole
purpose.
The Company agrees that delivery of an Utilisation Request by the
Presenting Bank shall constitute a confirmation by the Company that
each applicable condition to be satisfied on the date of this
Utilisation Request pursuant to Clauses 4.1 (Initial conditions
precedent) and 4.2 (Conditions precedent to Utilisation under Facility
A and Facility B) is satisfied on such date.
In the event that the Presenting Bank does no longer act as banque
presentatrice under the Additional Offer and/or, as the case may be,
under the Squeeze-Out Offer, no Utilisation shall be made for the
purpose of financing an Acquisition Payment under the Additional Offer
and/or, as the case may be, under the Squeeze-Out Offer until and
unless the credit institution acting as banque presentatrice under the
Additional Offer and/or, as the case may be, under the Squeeze-Out
Offer accedes to this Agreement and accepts to be bound by the
provisions of this Clause 5 (Utilisation).
- 22 -
5.4 LENDERS' PARTICIPATION
(a) If the applicable conditions set out in this Agreement have
been met, each Lender shall make its participation in each
Loan available by the Utilisation Date through its Facility
Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to making the Loan.
(c) The Agent shall determine the Base Currency Amount of each
Facility C Loan which is to be made in one Optional Currency
and shall notify each Lender of the amount, currency and the
Base Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified
Time.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Facility C Loan in a Utilisation Request.
6.2 UNAVAILABILITY OF A CURRENCY
(a) If before the Specified Time on any Quotation Day:
(i) a Lender notifies the Agent that the Optional
Currency requested is not readily available to it in
the amount required; or
(ii) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the Optional
Currency would contravene a law or regulation
applicable to it,
the Agent will give notice to the relevant Borrower to that
effect by the Specified Time on that day. In this event, any
Lender that gives notice pursuant to this Clause 6.2(a) will
be required to participate in the Loan in the Base Currency
(in an amount equal to that Lender's proportion of the Base
Currency Amount or, in respect of a Rollover Loan, an amount
equal to that Lender's proportion of the Base Currency Amount
of the Rollover Loan that is due to be made) and its
participation will be treated as a separate Loan denominated
in the Base Currency during that Interest Period.
(b) Paragraph (a)(i) of this clause 6.2 shall not apply in
relation to Sterling or US Dollars.
6.3 AGENT'S CALCULATIONS
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.4 (Lenders' participation).
- 23 -
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF FACILITY A LOANS
(a) The Company must repay the Facility A Loans in full on the
Facility A Original Final Maturity Date (subject to the
exercise of the First Extension Option in accordance with the
provisions of paragraph (b) below and, as the case may be, of
the Second Extension Option in accordance with the provisions
of paragraph (c) below).
(b) The Company shall be entitled at any time between the date
falling 60 days and the date falling 30 days before the
Facility A Original Final Maturity Date to request that the
date on which the Facility A Loans shall be repaid in full
shall be the Facility A First Extended Final Maturity Date by
giving a notice in writing to the Agent to that effect.
The First Extension Option shall be effective on the date of
the Facility A Original Final Maturity Date provided that on
such date:
(i) no Event of Default or Default is continuing or would
result from the exercise of the First Extension
Option;
(ii) the Repeating Representations to be made by the
Company are true in all material respects; and
(iii) the Company has paid the extension fee referred to in
paragraph (a) of Clause 12.4 (Extension Fee).
(c) To the extent that the Company has exercised the First
Extension Option, The Company shall be entitled at any time
between the date falling 60 days and the date falling 30 days
before the Facility A First Extended Final Maturity Date to
request that the date on which the Facility A Loans shall be
repaid in full shall be the Facility A Second Extended Final
Maturity Date by giving a notice in writing to the Agent to
that effect.
The Second Extension Option shall be effective on the date of
the Facility A First Extended Final Maturity Date provided
that on such date:
(i) no Event of Default or Default is continuing or would
result from the exercise of the Second Extension
Option;
(ii) the Repeating Representations to be made by the
Company are true in all material respects; and
(iii) the Company has paid the extension fee referred to in
paragraph (b) of Clause 12.4 (Extension Fee).
(d) The Company may not reborrow any part of Facility A which is
repaid.
- 24 -
7.2 REPAYMENT OF FACILITY B LOANS
(a) The Company must repay the Facility B Loans in full on the
Facility B Final Maturity Date.
(b) The Company may not reborrow any part of Facility B which is
repaid.
7.3 REPAYMENT OF FACILITY C LOANS
(a) Each Borrower which has drawn a Facility C Loan shall repay
that Facility C Loan on the last day of its Interest Period.
(b) Subject to the other terms of this Agreement, any amount
repaid under paragraph (a) may be reborrowed.
(c) No Borrower may reborrow any part of Facility C following the
Facility C Final Maturity Date.
8. PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event;
(b) upon the Agent notifying the Company, the Commitment of that
Lender will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the
Loans made to that Borrower on the last day of the Interest
Period for each Loan occurring after the Agent has notified
the Company or, if earlier, the date specified by the Lender
in the notice delivered to the Agent (being no earlier than
the last day of any applicable grace period permitted by law).
8.2 CHANGE OF CONTROL OF THE COMPANY
(a) If any person (other than L'Oreal or Total) or group of
persons acting in concert (other than a concert in which
L'Oreal and/or Total have a majority stake) acquires more than
50% of the voting rights of the Company:
(i) the Company shall promptly notify the Agent upon
becoming aware of that event and shall consult with
the Lenders for a 60 days period commencing on the
date of the notification so as to keep their
respective Commitment outstanding following the
occurrence of that event;
(ii) at the end of such 60 days period, each Lender, by
not less than 15 days notice to the Company, may
cancel its participation in the Facilities and
declare all its participations in outstanding Loans,
together with accrued interest, and all other amounts
accrued under the Finance Documents immediately due
and payable to it,
- 25 -
whereupon the participation of such Lenders in the
Facilities will be cancelled and all such outstanding
amounts will become immediately due and payable.
(b) For the purpose of paragraph (a) above "ACTING IN CONCERT" has
the meaning given in article L.233-10 of the French Code de
Commerce.
8.3 VOLUNTARY CANCELLATION
The Company may, if it gives the Agent not less than 10 Business Days'
(or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of EUR
100,000,000) of an Available Facility. Any cancellation under this
Clause 8.3, if in respect of either of Facility A or Facility B, shall
be made under both Facility A and Facility B on a prorata basis as long
as there remains any Available Commitment under either Facility. Any
cancellation under this Clause 8.3 shall reduce the Commitments of the
Lenders rateably under the Facility concerned.
No cancellation shall be requested by the Company prior to the expiry
of the Certain Funds Period.
8.4 MANDATORY CANCELLATION
All Commitments shall be automatically cancelled if:
(a) the Original Offer and the note d'information relating
thereto is not filed with the AMF within 10 Business Days
following the signing of this Agreement (unless otherwise
agreed by the Lenders);
(b) at any time following the Announcement Date, the Company
exercises any right it may have under any applicable
regulation to withdraw the Original Offer;
(c) at any time following the Announcement Date, an Original
Offer Result Notice is issued evidencing that the Original
Offer has not been successful;
(d) no Original Offer Result Notice has been issued by the AMF
prior to the end of a 11 Month period following the
Announcement Date.
8.5 VOLUNTARY PREPAYMENT
(a) The Company may, if it gives the Agent not less than 10
Business Days' (or such shorter period as the Majority Lenders
may agree) prior notice, prepay the whole or any part of the
Facilities provided that amounts voluntary prepaid shall be
applied in priority (i) towards the discharge of sums due
under Facility A and Facility B on a prorata basis as long as
any sums remain outstanding under both Facility A and Facility
B or (ii) if no sums remain outstanding under Facility A,
towards the discharge of sums due under Facility B (as long as
any sums remains outstanding under Facility B). No Amounts
shall be prepaid under Facility C unless and until no amounts
remain outstanding under Facility A and Facility B.
(b) Each Facility shall be cancelled by an amount equal to the
amount prepaid under such Facility.
- 26 -
8.6 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of
Clause 13.2 (Tax gross-up) or under an equivalent
provision of any Finance Document;
(ii) any Lender claims indemnification from the Company
under Clause 13.3 (Tax indemnity) or Clause 14.1
(Increased costs); or
(iii) the Additional Cost Rate calculated for any Lender in
accordance with Schedule 4 (Mandatory Cost Formulae)
is greater than zero,
the Company may, whilst (in the case of paragraphs (i) and
(ii) above) the circumstance giving rise to the requirement or
indemnification continues or (in the case of paragraph (iii)
above) that Additional Cost Rate is greater than zero, give
the Agent notice of cancellation of the Commitment of that
Lender and its intention to procure the repayment of that
Lender's participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
(c) On the last day of each Interest Period which ends after the
Company has given notice under paragraph (a) above (or, if
earlier, the date specified by the Company in that notice),
each Borrower to which a Loan is outstanding shall repay that
Lender's participation in that Loan.
8.7 MANDATORY PREPAYMENT IN RELATION TO A SINGLE LENDER
If it becomes unlawful for a Borrower to perform any of its obligations
to any Lender under paragraph (c) of Clause 13.2 (Tax gross-up) or
under an equivalent provision of any Finance Document,
(a) the Company shall promptly notify the Agent upon becoming
aware of that event;
(b) that Borrower shall repay that Lender's participation in the
Loans made to that Borrower on the last day of each Interest
Period which ends after the Company has given notice under
paragraph (a) above or, if earlier, the date specified by that
Lender in a notice delivered to the Agent (being no earlier
than the last day of any applicable grace period permitted by
law).
8.8 MANDATORY PREPAYMENT BY AN ADDITIONAL BORROWER
Any amount borrowed by an Additional Borrower shall be prepaid
immediately upon such Additional Borrower ceasing to be a member of the
Group or if it is or becomes unlawful for the Guarantor to perform any
of its obligations under the related Guarantee.
- 27 -
8.9 MANDATORY PREPAYMENT DUE TO UNLAWFULNESS
Any amount borrowed by a Borrower shall be prepaid immediately if it is
or becomes unlawful for that Borrower to perform any of its obligations
under any Finance Documents.
8.10 MANDATORY PREPAYMENT AND CANCELLATION FROM NET CASH PROCEEDS
(a) The Company (for itself or, as the case may, on behalf of any
Additional Borrower) shall, subject to paragraph (b), (c),
(f), (g), and (h) below, prepay and cancel the Facilities by
an amount equal to the amount of Net Cash Proceeds received by
or for the account of any member of the Group.
(b) The obligation to prepay pursuant to this Clause 8.10 an
amount equal to Net Disposal Proceeds received by any member
of the Group shall apply only in respect of Net Disposal
Proceeds received in any given financial year in aggregate in
excess of EUR 2,000,000,000. Such prepayment shall be made on
the last day of the Interest Period which expires immediately
after 30 June each following year, starting from (and
including) 30 June 2005.
(c) Any prepayment pursuant to this Clause 8.10 in respect of Net
Securitisation Program Proceeds shall be made on the last day
of the Interest Period which expires immediately after 30 June
each following year, starting from (and including) 30 June
2005.
(d) Amounts to be prepaid pursuant to this Clause 8.10 shall be
applied in priority towards (i) the prepayment of Facility A
and Facility B on a prorata basis as long as any sums remain
outstanding under both Facility A and Facility B and (ii) if
no sum remains outstanding under Facility A, toward the
prepayment of Facility B as long as any sums remain
outstanding under Facility B. In both cases, if the amount to
be prepaid exceeds the amounts outstanding under Facility A
and Facility B, such excess shall be applied towards the
prepayment of Facility C (up to the then outstanding amount
under Facility C) and Commitment relating to Facility C shall
be cancelled for an amount equal to such excess.
If at the date of the prepayment to be made pursuant to this
Clause 8.10, no amounts remains outstanding under Facility A
and Facility B, the amounts to be prepaid shall be applied
entirely towards the prepayment of Facility C (up to the then
outstanding amount under Facility C) and Commitment relating
to Facility C shall be cancelled for an amount equal to such
prepayment.
(e) The Company shall promptly and in any event within two
Business Days notify the Agent forthwith of receipt by any
member of the Group of any Net Disposal Proceeds.
(f) Prepayments shall not be required to be made pursuant to this
Clause 8.10, if and to the extent such prepayments cannot be
funded otherwise than in breach of legal provisions regarding
corporate interest, financial assistance and fiduciary duties
of directors, if and to the extent that proceeds need to be
upstreamed to the Company (unless the relevant Net Cash
Proceeds has been received by an Additional Borrower which can
use the said amount in
- 28 -
prepayment of Loans made to it) by loan, cash transfer or
dividend payment, where such upstreaming cannot lawfully be
done, it being understood that in such case the Company shall
make its best efforts to ensure that, to the extent possible,
the prohibition to such upstreaming is overcome as soon as
possible and that the corresponding prepayment shall be made
immediately when it can be legally funded.
(g) If the Company notifies the Agent that, and establishes to the
Agent's reasonable satisfaction that (a) a prepayment pursuant
to this Clause 8.10 cannot be lawfully funded otherwise than
by way of an intra-group loan causing the application of any
applicable "thin capitalization rules" at the level of the
relevant borrower and (b) that the application of such "thin
capitalization rules" would result in an increase of the
effective amount of tax payable by such borrower (excluding
for the avoidance of doubt, any reduction of any tax losses of
such borrower), then such prepayment shall not be required to
be made pursuant to this Clause 8.10. The prepayment shall be
made immediately when it can be funded otherwise than by way
of an intra-group loan or when it can be funded otherwise than
by way of an intra-group loan causing the application of any
relevant "thin capitalization rules" in the conditions
described above.
(h) If the Company notifies the Agent that, and establishes to the
Agent's reasonable satisfaction that (a) a prepayment pursuant
to this Clause 8.10 cannot be lawfully funded otherwise than
by way of a distribution of dividends and that (b) such
distribution of dividends cannot be made without triggering
the effective payment, by the person making the distribution,
of a Precompte (other than a Precompte which may be refunded
on the basis of a double taxation agreement), then such
prepayment shall not be required to be made pursuant to this
Clause 8.10. The prepayment shall be made immediately when it
can be funded otherwise than by a distribution of dividends or
when it can be funded by way of distribution of dividends
without triggering the payment of Precompte in the conditions
described above.
(i) If the Company notifies the Agent that, and establishes to the
Agent's reasonable satisfaction that (a) a prepayment pursuant
to this Clause 8.10 cannot be lawfully funded otherwise than
by way of a distribution of dividends and/or reserves and that
(b) such distribution of dividends and/or reserves cannot be
made without triggering the effective payment, by the person
making the distribution, of the prelevement exceptionnel
provided for by article 95 of the French Loi de Finance for
2004, then such prepayment shall not be required to be made
prior to 1st January 2006 provided that such prepayment shall
be made as soon as practicable following such date.
(j) In this Clause,
"NET CASH PROCEEDS" means any Net Disposal Proceeds or Net
Securitisation Program Proceeds.
"NET DISPOSAL PROCEEDS" means, in relation to any disposal of
any asset (other than a disposal of current assets (actifs
circulants) made in the ordinary course of business or
disposal of assets made to the benefit of another member of
the Group), any cash proceeds (or in the case of
- 29 -
consideration paid by way of an issue of debt, bond or equity
instrument delivered to the transferor, an equivalent amount
thereto) thereof from time to time that are to be received by
or for the account of any member of the Group net of:
(i) any tax liability arising from such disposal;
(ii) any reinvestment made out of such cash proceeds to
the extent that (a) such reinvestment is made no
later than 30 June of the year following the
financial year during which such cash proceeds have
been received and (b) such reinvestment is made in
businesses, shares or other assets consistent with
the nature of business of the Company or the Group as
carried on at the date of this Agreement; and
(iii) reasonable commissions, fees and expenses payable by
any member of the Group in connection with such
disposal (without limitation, including pursuant to
earn out provisions and taking into account the
amount of any proceeds received in respect of
repayment or disposal of any intra group loan).
but excluding:
(a) in the case of a disposal of a Subsidiary where
liabilities to third parties are assumed by other
members of the Group as part of the consideration for
the sale of that Subsidiary, such amount of the
consideration received by the Group which is
attributable to that assumption;
(b) in the case of a disposal by a Subsidiary that is not
a wholly-owned Subsidiary, the pro rata share of such
cash proceeds attributable to the minority interests
in that Subsidiary; and
(c) in the case of a disposal effected by a Subsidiary,
the repayment of Financial Indebtedness related to
the assets subject to the disposal which are required
to be repaid in order to effect the disposal.
"NET SECURITISATION PROGRAM PROCEEDS" means, in relation to
any securitisation or trade receivables sale program entered
into by any member of the Group, the amount, if any, by which
the aggregate amounts utilised under such programs at the end
of any financial year exceeds the aggregate amounts utilised
under such programs at the end of the preceding financial
year. It is understood that, in respect of any such programs
entered into by Target and its Subsidiaries, and for the
financial year in which the Company will gain the effective
control of Target, the Net Securitisation Program Proceeds
will include the amount, if any, by which the aggregate
amounts utilised under such programs at the end of the
relevant financial year exceeds the aggregate amounts utilised
under such programs on the date on which the Company gained
the effective control of Target. For the purposes of this
Clause 8.10, the Company undertakes to notify the Agent,
forthwith upon gaining the effective control of Target, of the
aggregate amounts utilised under such programs and shall
notify the Agent no later than 31 January each year of the
aggregate amounts utilised under such programs at the end of
the preceding two financial years and of the corresponding Net
Securitisation Program Proceeds, if any.
- 30 -
"PRECOMPTE" means the "precompte" as defined in article 223
sexies of the French Code General des Impots, or any
equivalent tax in any jurisdiction or replacing the above
provided in each case that such tax is a final liability and
is not refundable.
8.11 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 8 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) No Borrower may reborrow any part of Facility A or Facility B
which is prepaid.
(d) The Borrowers shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this
Agreement.
(e) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the Company
or the affected Lender, as appropriate.
- 31 -
SECTION 5
COSTS OF UTILISATION
9. INTEREST
9.1 FACILITY A CALCULATION OF INTEREST
(a) The rate of interest on each Facility A Loan for each Interest
Period shall be the percentage rate per annum which is the
aggregate of the applicable:
(i) Facility A Margin;
(ii) EURIBOR; and
(iii) Mandatory Cost, if any.
(b) The Facility A Margin shall be equal to 0.40% in respect of
each Interest Period commencing prior to the Margin Adjustment
Date.
(c) The Facility A Margin applicable to any Interest Period
commencing on or following the Margin Adjustment Date shall be
equal to the average of the percentage rates per annum set
below opposite the credit rating assigned respectively by S&P
and Xxxxx'x on the long term unsecured and unsubordinated debt
or on the Facility itself (as agreed between the Company and
the Mandated Lead Arrangers) of the Company on the first day
of such Interest Period:
RATINGS ASSIGNED BY S&P AND XXXXX'X MARGIN (%)
AA-/Aa3 or above 0.35
A+/A1 or A/A2 0.40
A-/A3 0.45
BBB+/Baa1 or below or no rating 0.525
9.2 FACILITY B CALCULATION OF INTEREST
(a) The rate of interest on each Facility B Loan for each Interest
Period shall be the percentage rate per annum which is the
aggregate of the applicable:
(i) Facility B Margin;
(ii) EURIBOR; and
(iii) Mandatory Cost, if any.
(b) The Facility B Margin shall be equal to 0.45% in respect of
each Interest Period commencing prior to the Margin Adjustment
Date.
(c) The Facility B Margin applicable to any Interest Period
commencing on or following the Margin Adjustment Date shall be
equal to the average of the percentage rates per annum set
below opposite the credit rating assigned respectively by S&P
and Xxxxx'x on the long term unsecured and
- 32 -
unsubordinated debt or on the Facility itself (as agreed
between the Company and the Mandated Lead Arrangers) of the
Company on the first day of such Interest Period:
RATINGS ASSIGNED BY S&P AND XXXXX'X MARGIN (%)
AA-/Aa3 or above 0.40
A+/A1 or A/A2 0.45
A-/A3 0.50
BBB+/Baa1 or below or no rating 0.575
9.3 FACILITY C CALCULATION OF INTEREST
(a) The rate of interest on each Facility C Loan for each Interest
Period is the percentage rate per annum which is the aggregate
of the applicable:
(i) Facility C Margin;
(ii) EURIBOR or, in relation to any Loan in an Optional
Currency, LIBOR; and
(iii) Mandatory Cost, if any.
(b) The Facility C Margin shall be equal to 0.50% in respect of
each Interest Period commencing prior the Margin Adjustment
Date.
(c) The Facility C Margin applicable to any Interest Period
commencing on or following the Margin Adjustment Date shall be
equal to the average of the percentage rates per annum set
below opposite the credit rating assigned respectively by S&P
and Xxxxx'x on the long term unsecured and unsubordinated debt
or on the Facility itself (as agreed between the Company and
the Mandated Lead Arrangers) of the Company during such
Interest Period:
RATINGS ASSIGNED BY S&P AND XXXXX'X MARGIN (%)
AA-/Aa3 or above 0.45
A+/A1 or A/A2 0.50
A-/A3 0.55
BBB+/Baa1 or below or no rating 0.625
9.4 GENERAL PROVISIONS REGARDING MARGIN ADJUSTMENTS
If there is a change of the credit rating assigned by S&P or Xxxxx'x
during an Interest Period, for the purpose of determining the
applicable rate of interest, such change shall take effect for each
Loan on the next Interest Period in respect thereto.
- 33 -
9.5 ADJUSTMENT OF THE MARGIN UPON REPAYMENT AND CANCELLATION OF MORE THAN
50% OF THE TOTAL COMMITMENT
Each of the applicable Facility A Margin, Facility B Margin and
Facility C Margin determined in accordance with the provisions of
article 9.1 to 9.4 above shall be reduced by 0.05% per annum following
the date on which more than 50% of the Total Commitments as of the date
of this Agreement has been repaid and/or cancelled. Such change shall
take effect for each Loan on the next Interest Period in respect
thereto.
9.6 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest
on that Loan on the last day of each Interest Period.
9.7 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue to the
fullest extent permitted by law on the overdue amount from the
due date up to the date of actual payment (both before and
after judgment) at a rate which, subject to paragraph (b)
below, is 1% (one per cent.) higher than the rate which would
have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 9.7 shall be immediately
payable by the Borrower on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan;
and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be 1% (one
per cent.) higher than the rate which would have
applied if the overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount
will be compounded with the overdue amount only if, within
the meaning of Article 1154 of the French Code Civil, such
interest is due for a period of at least one year, but will
remain immediately due and payable.
9.8 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower
of the determination of a rate of interest under this Agreement.
9.9 EFFECTIVE GLOBAL RATE (TAUX EFFECTIF GLOBAL)
For the purposes of Articles L313-1 et seq, R 313-1 and R313-2 of the
Code de la Consommation, the Parties acknowledge that by virtue of
certain characteristics of the Facility (and in particular the variable
interest rate applicable to Loans and the Borrower's right to select
the currency and the duration of the Interest Period of each
- 34 -
Loan) the taux effectif global cannot be calculated at the date of this
Agreement. However, the Company acknowledges that it has received from
the Agent a letter containing an indicative calculation of the taux
effectif global for each Facility, based on figured examples calculated
on assumptions as to the taux de periode and duree de periode set out
in the letter. The Parties acknowledge that that letter forms part of
this Agreement.
10. INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) Each Interest Period shall have a duration of one Month until:
(i) in respect of Facility A Loans and Facility B Loans
only, the Agent receives a Selection Notice
requesting another duration in accordance with the
provisions of paragraph (b) below; or,
(ii) in respect of any Loan, the Borrower shall select
another duration in accordance with the provisions of
paragraph (c) below.
(b) The Company may not send the Selection Notice to the Agent
prior to the Syndication Date. The Company shall select
pursuant to the Selection Notice an Interest Period duration
under Facility A Loans and Facility B Loans of two, three or
six Months (or any other duration agreed between the Agent
(acting on the instruction of all the Lenders) and the
Company). The selected Interest Period duration shall apply to
all Interest Periods relating to Facility A Loans and Facility
B Loans until the Facility A Final Maturity Date and the
Facility B Final Maturity Date respectively.
(c) Following the Syndication Date, any Utilisation Request
delivered to the Agent may select an Interest Period duration
of one, two, three or six Months (or any other period agreed
between the Agent (acting on the instruction of all the
Lenders)) and the Company. Utilisation Request delivered prior
to the Syndication Date shall not select an Interest Period
duration other than one Month.
(d) Each Interest Period for a Loan shall start on the Utilisation
Date and each successive Interest Period shall commence on the
last day of the previous one.
(e) The first Interest Period of any Facility A Loan shall end on
the last day of all other outstanding Facility A Loans (if
any).
(f) The first Interest Period of any Facility B Loan shall end on
the last day of all other outstanding Facility B Loans (if
any).
(g) An Interest Period for a Loan shall not extend beyond the
final maturity date applicable to the Facility to which it
relates.
10.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
- 35 -
10.3 CONSOLIDATION OF LOANS
If two or more Interest Periods:
(i) relate to Loans made under the same Facility and in
the same currency;
(ii) end on the same date; and
(iii) are made to the same Borrower,
those Loans will be consolidated into, and treated as, a single Loan on
the last day of the Interest Period.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if EURIBOR or, if
applicable, LIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply a quotation by the Specified
Time on the Quotation Day, the applicable EURIBOR or LIBOR shall be
determined on the basis of the quotations of the remaining Reference
Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per
annum the cost to that Lender of funding its
participation in that Loan from whatever source it
may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Agent to determine EURIBOR or,
if applicable, LIBOR for the relevant currency and
Interest Period; or
(ii) before close of business in Paris on the Quotation
Day for the relevant Interest Period, the Agent
receives notifications from a Lender or Lenders
(whose participations in a Loan exceed 30 per cent.
of that Loan) that the cost to it of obtaining
matching deposits in the Relevant Interbank Market
would be in excess of EURIBOR or, if applicable,
LIBOR.
- 36 -
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the
Company so requires, the Agent and the Company shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Company, be binding on all Parties.
11.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which
they accrue.
12. FEES
12.1 COMMITMENT FEE
(a) The Company shall pay to the Agent (for the account of each
Lender), in respect of each Facility for its Availability
Period, a fee in the Base Currency computed at the rate of:
(i) 0.125 per cent. per annum on the Lenders' aggregate
Available Commitment under each Facility from the
date of this Agreement for the first six Months after
the Announcement Date;
(ii) 0.15 per cent. per annum on the Lenders' aggregate
Available Commitment under each Facility during the
period commencing six Months after the Announcement
Date and ending on the expiry of the Certain Funds
Period;
(iii) 40 per cent of the applicable margin (as determined
for each Facility in accordance with the provisions
of Clause 9 (Interest)) on the Lenders' Available
Commitment under each Facility following the expiry
of the Certain Funds Period.
(b) The commitment fee will be calculated on the basis of the
actual number of days elapsed in a year of 360 days.
For each Facility, the accrued commitment fee is payable on
the last day of each successive period of three Months which
ends during the relevant Availability Period, on the last day
of the Availability Period and on the cancelled amount of the
relevant Lender's Commitment at the time the cancellation is
effective.
- 37 -
12.2 UPFRONT FEE
The Company shall pay to the Mandated Lead Arrangers an upfront fee in
the amount and at the times agreed in a Fee Letter.
12.3 AGENCY FEE
The Company shall pay to the Agent (for its own account) an agency fee
in the amount and at the times agreed in a Fee Letter.
12.4 EXTENSION FEE
(a) Upon the exercise by the Company of the First Extension
Option, the Company shall pay on or prior to the Facility A
Original Final Maturity Date to the Agent (for the account of
each Lender under the Facility A) an extension fee equal to
0.025 per cent. of the total Facility A Commitment on the date
of the Facility A Original Final Maturity Date.
(b) Upon the exercise by the Company of the Second Extension
Option, the Company shall pay on or prior to the Facility A
First Extended Final Maturity Date to the Agent (for the
account of each Lender under the Facility A) an extension fee
equal to 0.025 per cent. of the total Facility A Commitments
on the date of the Facility A First Extended Final Maturity
Date.
- 38 -
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Agreement:
"PROTECTED PARTY" means a Finance Party which is or will be
subject to any liability, or required to make any payment, for
or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"QUALIFYING LENDER" means:
(i) in relation to a Borrower which is formed under the
laws of France or is treated as resident in France
for tax purposes, a Lender which:
(A) has its Facility Office in France; or
(B) fulfils the conditions imposed by French law
taking into account, as the case may be, any
double taxation agreement in force (subject
to the completion of any necessary
procedural formalities), in order for a
payment not to be subject to (or as the case
may be, to be exempt from) any Tax
Deduction; or,
(C) a Treaty Lender;
(ii) or, in relation to a Borrower other than a Borrower
referred to in paragraph (i) above, a Lender which:
(A) has its Facility Office in the jurisdiction
in which that Borrower is formed or (if
different) in the jurisdiction (or
jurisdictions) in which that Borrower is
treated as resident for tax purposes; or
(B) fulfils the conditions imposed by the laws
of the jurisdiction or jurisdictions
mentioned in paragraph (A) above taking into
account, as the case may be, any double
taxation agreement in force (subject to the
completion of any necessary procedural
formalities), in order for a payment not to
be subject to (or as the case may be, to be
exempt from) any Tax Deduction; or,
(C) a Treaty Lender.
"TAX CREDIT" means a credit against, relief or remission for,
or repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
- 39 -
"TAX PAYMENT" means an increased payment made by an Obligor to
a Finance Party under Clause 13.2 (Tax gross-up) or a payment
under Clause 13.3 (Tax indemnity).
"TREATY LENDER" means a Lender which is entitled to a payment
under a double taxation agreement (subject to the completion
of any necessary procedural formalities) without a Tax
Deduction.
(b) Unless a contrary indication appears, in this Clause 13 a
reference to "determines" or "determined" means a
determination made in the absolute discretion of the person
making the determination.
13.2 TAX GROSS-UP
(a) Each Borrower shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Company shall promptly upon becoming aware that a Borrower
must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) notify the Agent
accordingly. Similarly, a Lender shall notify the Agent
promptly on becoming so aware in respect of a payment payable
to that Lender. If the Agent receives such notification from a
Lender it shall promptly notify the Company and that Borrower.
(c) If a Tax Deduction is required by law to be made by a
Borrower, the amount of the payment due from that Borrower
shall be increased (subject to Clause 8.7 (Mandatory
prepayment in relation to a single Lender)) to an amount which
(after making any Tax Deduction) leaves an amount equal to the
payment which would have been due if no Tax Deduction had been
required.
(d) A Borrower is not required to make an increased payment to a
Lender under paragraph (c) above for a Tax Deduction from a
payment of interest on a Loan, if on the date on which the
payment falls due:
(i) the payment could have been made to the relevant
Lender without a Tax Deduction if it was a Qualifying
Lender, but on that date that Lender is not or has
ceased to be a Qualifying Lender other than as a
result of any change after the date it became a
Lender under this Agreement in (or in the
interpretation, administration, or application of)
any law or double taxation agreement, or any
published practice or concession of any relevant
taxing authority; or,
(ii) the relevant Lender is a Treaty Lender and the
Borrower making the payment is able to demonstrate
that the payment could have been made to the Lender
without the Tax Deduction had that Lender complied
with its obligations under paragraph (h) below.
(e) Paragraph (d)(i) above shall not apply if a Tax Deduction
arises in respect of a Loan made to an Additional Borrower
which is not French tax resident.
(f) If a Borrower is required to make a Tax Deduction, that
Borrower shall make that Tax Deduction and any payment
required in connection with that Tax Deduction within the time
allowed and in the minimum amount required by law.
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(g) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Borrower making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
(h) A Treaty Lender and each Obligor which makes a payment to
which that Treaty Lender is entitled shall co-operate in
completing any procedural formalities necessary for that
Obligor to obtain authorisation to make that payment without a
Tax Deduction.
13.3 TAX INDEMNITY
(a) The Company shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will
be or has been (directly or indirectly) suffered for or on
account of Tax by that Protected Party in respect of a Finance
Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which
that Finance Party is incorporated or, if
different, the jurisdiction (or
jurisdictions) in which that Finance Party
is treated as resident for tax purposes; or
(B) under the law of the jurisdiction in which
that Finance Party's Facility Office is
located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment
under Clause 13.2 (Tax gross-up); or
(B) would have been compensated for by an
increased payment under Clause 13.2 (Tax
gross-up) but was not so compensated solely
because one of the exclusions in paragraph
(d) of Clause 13.2 (Tax gross-up) applied.
(c) A Protected Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the Agent of the
event which will give, or has given, rise to the claim,
following which the Agent shall notify the Company.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Agent.
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13.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that
Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not
been made by the Obligor.
13.5 STAMP TAXES
The Company shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
13.6 VALUE ADDED TAX
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable, on any supply made
by any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in
addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also
at the same time pay and indemnify the Finance Party against
all VAT incurred by the Finance Party in respect of the costs
or expenses to the extent that the Finance Party reasonably
determines that it is not entitled to credit or repayment of
the VAT.
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions) the Company shall, within
three Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made
after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility
or on a Finance Party's (or its Affiliate's) overall
capital;
(ii) an additional or increased cost; or
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(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause
14.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim, following which the Agent shall
promptly notify the Company.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate indicating the
event giving rise to the claim and confirming the amount of
its Increased Costs.
14.3 EXCEPTIONS
Clause 14.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(a) attributable to a Tax Deduction required by law to be made by
an Obligor;
(b) compensated for by Clause 13.3 (Tax indemnity) (or would have
been compensated for under Clause 13.3 (Tax indemnity) but was
not so compensated solely because one of the exclusions in
paragraph (b) of Clause 13.3 (Tax indemnity) applied);
(c) compensated for by the payment of the Mandatory Cost; or
(d) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from a Borrower under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"FIRST CURRENCY") in which that Sum is payable into another
currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the
Borrower;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings,
that Borrower shall as an independent obligation within three
Business Days of demand, indemnify to the extent permitted by
law each Finance Party to whom that Sum is due against any
cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum from the First Currency into
the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that
Sum.
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(b) Each Borrower waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
15.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 27
(Sharing among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Company.
15.3 INDEMNITY TO THE AGENT
The Company shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
16. MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company,
take all reasonable steps to mitigate any circumstances which
arise and which would result in any amount becoming payable
under or pursuant to, or cancelled pursuant to, any of Clause
8.1 (Illegality), Clause 13 (Tax gross-up and indemnities)
Clause 14 (Increased costs) or Schedule 4 (Mandatory Cost
formulae) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another
Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) The Company shall indemnify each Finance Party for all costs
and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 16.1 (Mitigation).
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(b) A Finance Party is not obliged to take any steps under Clause
16.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Agent and the Mandated
Lead Arrangers the amount of all costs and expenses (including legal
fees) reasonably incurred by any of them in connection with the
negotiation, preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
17.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), the
Company shall, within three Business Days of demand, reimburse the
Agent for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
17.3 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
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SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
18. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 18 to each Finance Party in relation to itself and (where
applicable) its Subsidiaries on the date it enters into the relevant
Finance Document to which it is a party.
18.1 STATUS
(a) It is a corporation, duly incorporated and validly existing
under the law of its jurisdiction of incorporation.
(b) It and each of its Material Subsidiaries has the power to own
its assets and carry on its business as it is being conducted.
18.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to any Reservations, legal, valid, binding and enforceable
obligations.
18.3 NON-CONTRAVENTION WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not contravene
to any extent which is material as regards the Finance Documents with:
(a) any law or regulation applicable to it;
(b) its and each of its Material Subsidiaries' constitutional
documents; or
(c) any agreement or instrument binding upon it or any of its
Material Subsidiaries or any of its or any of its Material
Subsidiaries' assets.
18.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
18.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which
it is a party; and
(b) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation
save as set out in any Reservations,
have been obtained or effected and are in full force and effect.
- 46 -
18.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of French law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction
of incorporation.
(b) Any judgment obtained in France in relation to a Finance
Document will be recognised and enforced in its jurisdiction
of incorporation.
18.7 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation
to make any Tax Deduction from any payment it may make to any
Qualifying Lender (to the extent that such Qualifying Lenders has
complied with all necessary procedural formalities applicable to it)
under any Finance Document.
18.8 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents
save as set out in any Reservations.
18.9 NO DEFAULT
(a) No Event of Default is continuing or can reasonably be
expected to result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument
which is binding on it or any of its Material Subsidiaries or
to which its (or its Material Subsidiaries') assets are
subject which might reasonably be expected to have a Material
Adverse Effect.
18.10 NO MISLEADING INFORMATION
(a) Any factual information provided by any member of the Group
for the purposes of the Information Memorandum will, to the
best of the Company's knowledge, be true and accurate in all
material respects as at the date it was provided or as at the
date (if any) at which it is stated.
(b) The financial projections contained in the Information
Memorandum will be prepared on the basis of recent historical
information and on the basis of reasonable assumptions.
(c) No information will be given or omitted by any member of the
Group that results in the information contained in the
Information Memorandum being untrue or misleading in any
material respect.
(d) The representation made in this Clause 18.10 is made by the
Company only.
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18.11 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance
with GAAP consistently applied unless expressly disclosed to
the Agent in writing to the contrary before the date of this
Agreement.
(b) Its Original Financial Statements (in conjunction with the
notes thereto) fairly represent its financial condition and
operations (consolidated in the case of the Company) during
the relevant financial year unless expressly disclosed to the
Agent in writing to the contrary before the date of this
Agreement.
(c) There has been no material adverse change in its business or
financial condition (or the business or consolidated financial
condition of the Group, in the case of the Company) since the
date of closing of the financial year to which those Original
Financial Statements relate.
18.12 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
18.13 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which, if adversely determined,
might reasonably be expected to have a Material Adverse Effect have (to
the best of its and of its directors' knowledge and belief) been
started or threatened against it or any of its Material Subsidiaries.
18.14 REPETITION
Subject to Clause 18.15 (Non-Applicability), the Repeating
Representations are deemed to be made by each Obligor by reference to
the facts and circumstances then existing on:
(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Borrower, the day on which the
company becomes (or it is proposed that the company becomes)
an Additional Borrower.
18.15 NON-APPLICABILITY
(a) The representations set out in Clauses 18.1(b) (Status), 18.3
(Non-conflict with other obligations), 18.9 (No Default),
18.10 (No Misleading Information), 18.11 (Financial
Statements) and 18.13 (No proceedings pending or threatened)
do not apply in relation to:
(i) any member of the Target Group until 180 days after
the date when Target became a Subsidiary of the
Company; and
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(ii) any company (other than a member of the Target Group)
becoming a member of the Group until 90 days after
the date when that company became a member of the
Group.
(b) Notwithstanding the provisions of paragraph (a) above, the
representations set out in Clauses 18.1(b) (Status) and 18.3
(Non-conflict with other obligations) (together, for the
avoidance of doubt, with all Repeating Representations which
are not mentioned in paragraph (a) above and the
representation set out in Clause 18.4 (Power and authority))
shall apply immediately in relation to any member of the Group
which becomes an Additional Borrower.
19. INFORMATION UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
19.1 FINANCIAL STATEMENTS
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within
90 days after the end of each of its financial years:
(i) its audited consolidated financial statements for
that financial year; and
(ii) the audited financial statements of each Borrower for
that financial year; and
(b) as soon as the same become available, but in any event within
90 days after the end of each half of each of its financial
years:
(i) its consolidated financial statements for that
financial half year; and
(ii) the financial statements of each Borrower for that
financial half year.
19.2 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Agent, with each set of
financial statements delivered pursuant to paragraph (a)(i) or
(b)(i) of Clause 19.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as
to compliance with Clause 20 (Financial covenants) as at the
date as at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by the Chief
Executive Officer (directeur general) or the Chief Financial
Officer (directeur financier) of the Company.
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19.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company
pursuant to Clause 19.1 (Financial statements) shall be
certified by a director of the relevant company as fairly
representing its financial condition as at the date as at
which those financial statements were drawn up.
(b) The Company shall procure that each set of financial
statements of a Borrower delivered pursuant to Clause 19.1
(Financial statements) is prepared using applicable GAAP,
accounting practices and financial reference periods
consistent with those applied in the preparation of the
Original Financial Statements for that Borrower (or, where
applicable, its latest annual financial statements delivered
to the Agent in accordance with this Clause 19) provided that,
in relation to the Company's consolidated financial
statements, if any changes has occurred in relation to
applicable GAAP, accounting practices or reference period, the
Company shall notify the same to the Agent and the Company's
auditors shall deliver to the Agent:
(i) a description of any change necessary for those
consolidated financial statements to reflect the
GAAP, accounting practices and reference periods upon
which the Company's Original Financial Statements
(or, where applicable, its latest annual consolidated
financial statements delivered to the Agent in
accordance with this Clause 19) were prepared; and
(ii) sufficient information, in form and substance as may
be reasonably required by the Agent, to enable the
Lenders to determine whether Clause 20 (Financial
covenants) has been complied with and make an
accurate comparison between the financial position
indicated in those consolidated financial statements
and the Company's Original Financial Statements (or,
where applicable, its latest annual consolidated
financial statements delivered to the Agent in
accordance with this Clause 19).
Any reference in this Agreement to those financial statements
shall be construed as a reference to those financial
statements as adjusted to reflect the basis upon which the
Original Financial Statements (or, where applicable, its
latest annual financial statements delivered to the Agent in
accordance with this Clause 19) were prepared.
19.4 INFORMATION: MISCELLANEOUS
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all information documents (excluding for the avoidance of
doubt notices of shareholders' meetings) dispatched by the
Company to its shareholders (or any class of them) or its
creditors generally at the same time as they are dispatched
and the Company shall procure that the same documents will be
delivered to the Agent in relation to Target as long as Target
remains listed;
(b) promptly upon becoming aware of it, available information as
to the existence of any litigation, arbitration or
administrative proceedings which are current, threatened or
pending against any member of the Group, and
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which might, if adversely determined, be reasonably be
expected to have a Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition of any Obligor as any Finance Party (through the
Agent) may reasonably request.
19.5 NOTIFICATION OF DEFAULT
(a) Each Borrower shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Borrower is
aware that a notification has already been provided by another
Borrower).
(b) Promptly upon a request by the Agent, the Company shall supply
to the Agent a certificate signed by two of its directors
(administrateurs) on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
19.6 NOTIFICATION OF RATING CHANGE
For the purpose of determining the applicable margin in accordance with
the provisions of Clause 9 (Interest), the Company shall notify the
Agent of any change of a rating on its long term unsecured and
unsubordinated debt (or, as the case may be, on the Facility itself)
assigned either by S&P or Xxxxx'x immediately upon becoming aware of
the same.
19.7 NOTIFICATION OF TRANSFER OF INTELLECTUAL PROPERTY RIGHTS WITHIN THE
GROUP
The Company undertakes to notify the Agent of any sale, lease, transfer
or other disposal (other than trough a licence) of any intellectual
property rights made by any Obligor in the benefit of any member of the
Group which is not an Obligor.
20. FINANCIAL COVENANTS
(a) The Company shall procure that on each Test Date (as from 30
June 2004 until and including 31 December 2008), the ratio of
Net Debt to EBITDA in respect of the Group on a consolidated
basis for the Relevant Period is no greater than 2.5:1.
(b) The Company shall procure that on each Test Date (as from and
including 30 June 2005 until and including 31 December 2008),
the Gross Debt of its Subsidiaries on a consolidated basis
(without taking into account any financial borrowing arising
under Facility C) shall at no time represent more than 1.0
times the EBITDA for the Relevant Period.
(c) So as to meet as soon as possible the ratio set out in
paragraph (b) above, the Company undertakes to make its best
efforts to refinance indebtedness of Target incurred prior to
the date on which the Company notifies the Agent that it has
the effective control of Target (which date shall not be later
than 3 Months following the date on which Target becomes a
Subsidiary of the Company), by way of indebtedness incurred by
the Company or incurred by Target under Facility C.
(d) In this Clause 20:
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"GROSS DEBT" means financial borrowings, whether short or long
term, including all capital lease obligations as such concepts
are defined in the notes to the Original Financial Statements
of the Company.
"NET DEBT" means Gross Debt after deduction of the total of
cash, cash equivalents and marketable securities held by the
Company, as provided in the consolidated balance sheet at each
Test Date.
"EBITDA" means for each Relevant Period, consolidated
operating profit of the Group, as defined under accounting
principles applicable to the Company's Original Financial
Statements, plus, as applicable to the Relevant Period (if the
following charges have been deducted to obtain operating
profit, ie without double counting):
(i) any amortization and depreciation charges, be it of
tangible or intangible assets including goodwill,
(ii) any purchase IPR&D charge as evaluated by an
independent expert in accordance with applicable
GAAP,
(iii) any impact of inventory step up upon adjustment of
inventory valuation to fair market value for the
opening of the accounts of the Group following the
acquisition of Target as required by GAAP,
(iv) any restructuring charge directly incurred in
connection with the Acquisition, such charges to be
incurred in 2004 and 2005 only and not to exceed EUR
1.000.000.000 in any of these years.
"RELEVANT PERIOD" means each twelve Month rolling basis period
ending on a Test Date.
"TEST DATE" means 30 June and 31 December of each calendar
year.
(d) The financial covenants contained in this Clause 20 will be
tested on each Test Date by reference to the latest
consolidated financial statement delivered to the Agent in
accordance with Clause 19.1 (Financial Statements).
21. GENERAL UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force and are subscribed by
each Obligor in relation to itself and where applicable its
Subsidiaries.
21.1 AUTHORISATIONS
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain
in full force and effect; and
(b) supply certified copies to the Agent of,
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any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document (subject to the Reservations).
21.2 COMPLIANCE WITH LAWS
(a) Each Obligor shall comply in all respects with all laws to
which it may be subject, if failure so to comply would
materially impair its ability to perform its obligations under
the Finance Documents.
(b) The Company shall comply in all respect with all material
applicable laws to which it may be subject in relation with
the Offer.
21.3 NEGATIVE PLEDGE
(a) No Obligor shall (and the Company shall ensure that no other
member of the Group will) create or permit to subsist any
Security over any of its assets.
(b) No Obligor shall (and the Company shall ensure that no other
member of the Group will):
(i) sell, transfer or otherwise dispose of any of its
assets on terms whereby they are or may be leased to
or re-acquired by an Obligor or any other member of
the Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms (other than pursuant to
securitisation programs of the Company's Group
existing on the date hereof and of Target Group
existing on the date the Company notifies the Agent
that it has the effective control of Target (which
date shall not be later than 3 Months following the
date on which Target becomes a Subsidiary of the
Company) and provided that the cash proceeds thereof
is applied toward the mandatory prepayment of the
Facilities where required in accordance with Clause
18.10 (Mandatory prepayment and cancellation from Net
Cash Proceeds);
(iii) enter into any arrangement under which money or the
benefit of a bank or other account may be applied,
set-off or made subject to a combination of accounts;
or
(iv) enter into any other preferential arrangement having
a similar effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing
the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Security disclosed in the Original Financial
Statements or listed in Schedule 9 (Existing
Security) except to the extent the principal amount
secured by that Security exceeds the amount stated in
that Schedule;
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(ii) any netting or set-off arrangement entered into by
any member of the Group in the ordinary course of its
banking arrangements or cash management (including
hedging policies made in accordance with sound
commercial practices on the basis of the existing
Group policies) ;
(iii) any lien arising by operation of law and in the
ordinary course of trading;
(iv) any Security over or affecting any asset acquired by
a member of the Group after the date of this
Agreement if:
(A) the Security was not created in
contemplation of the acquisition of that
asset by a member of the Group;
(B) the principal amount secured has not been
increased in contemplation of, or since the
acquisition of that asset by a member of the
Group; and
(C) the Security is removed or discharged within
9 Months of the date of acquisition of such
asset if not otherwise permitted under this
Clause 21.3;
(v) any Security over or affecting any asset of any
company which becomes a member of the Group after the
date of this Agreement, where the Security is created
prior to the date on which that company becomes a
member of the Group, if:
(A) the Security was not created in
contemplation of the acquisition of that
company;
(B) the principal amount secured has not
increased in contemplation of or since the
acquisition of that company; and
(C) the Security is removed or discharged within
9 Months of that company becoming a member
of the Group if not otherwise permitted
under this Clause 21.3;
(vi) any Security created in favour of a claimant or
defendant in any action of the court or tribunal
before whom such action is brought as security for
costs or expenses where any member of the Group is
actively prosecuting or defending such action by
appropriate proceedings in the bona fide interests of
the Group;
(vii) any Security created pursuant to any order of
attachment, distraint, garnishee order, arrestment,
adjudication or injunction or interdict restraining
disposal of assets or similar legal process arising
in connection with court proceedings, provided the
same are not, in the opinion of the Majority Lenders,
adverse to their interests;
- 54 -
(viii) any Security for taxes or assessments that are being
actively contested in good faith by appropriate
proceedings and for which adequate provisions are
being maintained to the extent required by applicable
principles;
(ix) any Security (a SUBSTITUTE SECURITY) which replaces
any other Security permitted pursuant to this Clause
and which secures an amount not exceeding the
principal amount secured by such permitted Security
at the time it is replaced together with any interest
accruing on such amounts from the date such
Substitute Security is created or arises any fees or
expenses incurred in relation thereto provided that
the existing Security to be replaced is released and
all amounts secured thereby paid or otherwise
discharged in full at or prior to the time of such
Substitute Security being created or arising;
(x) any Security securing indebtedness the principal
amount of which (when aggregated with the principal
amount of any other indebtedness which has the
benefit of Security given by any member of the Group
other than any permitted under paragraphs (i) to
(vii) above) does not exceed EUR 100,000,000 (or its
equivalent in another currency or currencies) until
the final Original Offer Settlement Date and EUR
250,000,000 (or its equivalent in another currency or
currencies) thereafter.
21.4 DISPOSALS
(a) No member of the Group may enter into a single transaction or
a series of transactions (whether related or not) to sell,
lease, transfer or otherwise dispose of any asset (other than
current assets), unless:
(i) such transaction is made on arms' length for fair
consideration (taking into account timing and other
constraints which may arise, as the case may be, in
relation to disposals required by any anti-trust
authority);
(ii) the Net Disposal Proceeds resulting from such
transaction are applied towards the mandatory
prepayment of the Facilities where required pursuant
to Clause 8.10 (Mandatory prepayment and cancellation
from Net Cash Proceeds).
(b) The Company shall not sell, lease, transfer or otherwise
dispose of (other than through a licence and for fair
consideration) any intellectual property rights generating a
significant source of income or likely to generate a
significant source of income during the duration of this
Agreement to any member of the Group unless such transfer is
made in compliance with the general policy of the Group as
regards intellectual property rights and the transferee agrees
to grant a first demand guarantee up to the maximum amount
legally possible (in a form satisfactory to the Lenders and
based on the terms and conditions consistent with those of the
Guarantee) for the benefit of the Lenders securing all or part
of the obligations of the transferor under the Finance
Documents.
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21.5 ACQUISITION
(a) As long as all commitments under Facility A and Facility B
have not been entirely cancelled and/or repaid, the Company
shall ensure that the aggregate amount in enterprise value of
acquisitions and investments in business, shares or other
assets made by it or any member of the Group during such
period will not exceed EUR 10,000,000,000 provided that
neither the Acquisition nor acquisition or investment made
within the ordinary course of business shall be taken into
account for the purpose of determining whether the above
threshold has been met.
(b) The Company shall ensure that no acquisition or investments
made by it or any other member of the Group will have a
Material Adverse Effect.
21.6 MERGER
No Obligor shall (and the Company shall ensure that no other member of
the Group will) enter into any amalgamation, merger or corporate
reconstruction other than under a solvent liquidation or reorganisation
involving (i) members of the Group only or (ii) members of the Group
and third parties for the purpose of achieving an acquisition
authorised pursuant to Clause 21.5 (Acquisition) provided in each case
that if any member of the Group involved in any such amalgamation,
merger or corporate reconstruction is an Obligor, such Obligor shall be
the surviving entity.
21.7 CHANGE OF BUSINESS
The Company shall procure that no substantial change is made to the
general nature of the business of the Company or the Group from that
carried on at the date of this Agreement.
21.8 OFFER
(a) The terms (including the price) and conditions of the Original
Offer shall be agreed between the Company and the Lenders
prior to the Announcement Date.
(b) The Company undertakes to carry out the Original Offer in
accordance with the terms and conditions agreed with the
Lenders and shall not, without the consent of the Majority
Lenders, make, or agree to, any waiver or change of any
condition precedent or term (including the price) of the
Original Offer or take or permit to be taken any step or make
any public statement as a result of which the terms (including
the price) and/or conditions of the Original Offer are, or may
be required to be, waived or changed, provided that no such
consent shall be required in relation to any waiver or change
of any term and/or condition of the Original Offer (i)
relating to the duration of the Original Offer (when filed)
and to any extension thereof or (ii) resulting from the
withdrawal of the Original Offer decided by the Company.
(c) The Company undertakes to file the Original Offer and the note
d'information relating thereto with the AMF as soon as
practicable and at the latest 10 Business Days following the
date of this Agreement, failing which the Commitments of the
Lenders under this Agreement shall be automatically cancelled
in accordance with provisions of Clause 8.4 (Mandatory
Cancellation).
- 56 -
(d) The Company may make an Additional Offer without the prior
consent of the Majority Lenders as long as such Additional
Offer is made on substantially the same terms and conditions
as the Original Offer (save for such changes as are permitted
without the prior Lenders' approval or as to which the Lenders
have granted their consent pursuant to paragraph (b) above).
(e) The Company shall keep the Agent informed at all times of all
proposed modifications, of all modifications and of all
material developments in relation to the Offer (including
where available, the levels of acceptance) and provide
promptly, such further information or document as any Finance
Party (through the Agent) may reasonably request in relation
to the Offer.
(f) The Company shall conduct its business during the whole
duration of the Original Offer in accordance with its strategy
as publicly announced. In addition, during such period, the
Company shall not proceed with any distribution of dividends
for an amount greater than EUR 1,000,000,000.
21.9 TRANSFER OF NET CASH PROCEEDS
Without prejudice to paragraphs (f) to (i) of Clause 8.10 (Mandatory
prepayment and cancellation from Net Cash Proceeds), the Company shall
(and shall ensure that any member of the Group will) make its best
efforts to carry out any transfer of Net Cash Proceeds from any member
of the Group to the Company for the purposes of allowing the Company to
meet its obligations to proceed with early prepayment pursuant to such
Clause 8.10 (Mandatory prepayment and cancellation from Net Cash
Proceeds).
21.10 NEW SUBSIDIARIES
The undertakings set out in this Clause 21 shall not apply to any
transaction, contract or arrangement to which any entity which becomes
a member of the Group after the date of this Agreement was a party
prior to it becoming a member of the Group (and which was not entered
into in contemplation of its becoming a member of the Group) until 180
days after the date on which that entity becomes a member of the Group.
22. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 22 is an Event of
Default.
22.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to
a Finance Document (except an amount the non-payment of which requires
the Borrower to make a prepayment under Clause 8.7 (Mandatory
prepayment in relation to a single Lender)) at the place at and in the
currency in which it is expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical
error; and
(b) payment is made within 3 Business Days of its due date.
22.2 FINANCIAL COVENANTS
Any requirement of Clause 20 (Financial covenants) is not satisfied.
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22.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 22.1
(Non-payment) and Clause 22.2 (Financial covenants).
(b) No Event of Default under paragraph (a) above in relation to
Clauses 21.1 (Authorisation) to 21.6 (Merger) will occur if
the failure to comply is, in the opinion of the Majority
Lenders, capable of remedy and is remedied within 15 Business
Days of the earlier of (i) the Agent giving notice to the
Company or (ii) the Company becoming aware of the failure to
comply.
22.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in connection with any Finance Document
is or proves to have been incorrect or misleading in any material
respect when made or deemed to be made.
22.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group is not
paid when due nor within any originally applicable grace
period.
(b) Any Financial Indebtedness of any member of the Group is
declared to be or otherwise becomes due and payable prior to
its specified maturity as a result of an event of default
(however described) except as the case may be (a) where such
declaration is being actively contested by the relevant member
of the Group in good faith by the taking of appropriate
proceedings before the competent courts, (b) the Company has
provided to the Agent, within 10 Business Days of such
declaration, opinions from two leading international law firms
that the relevant member of the Group has good grounds for
taking such a position and a certificate stating that the
relevant member of the Group has established adequate reserves
in respect of such Financial Indebtedness if required under
the applicable GAAP and (c) such declaration is waived or
dismissed within twelve Months of such declaration.
(c) Any commitment for any Financial Indebtedness of any member of
the Group is cancelled or suspended by a creditor of any
member of the Group as a result of an event of default
(however described) except as the case may be:
(i) (a) where such cancellation or suspension is being
actively contested by the relevant member of the
Group in good faith by the taking of appropriate
proceedings before the competent courts, (b) the
Company has provided to the Agent, within 10 days of
such declaration, opinions from two leading
international law firms that the relevant member of
the Group has good grounds for taking such a position
and (c) such cancellation or suspension is waived or
dismissed within twelve Months of such declaration,
or
(ii) where such Financial Indebtedness is suspended only
as a result of an event of default (however
described) which has not yet been declared for the
purpose of the cancellation of such Financial
- 58 -
Indebtedness and in respect of which the relevant
borrower has made a waiver request unless the related
Financial Indebtedness is cancelled and/or the
relevant waiver is not obtained within 10 Business
Days following the occurrence of the related event of
default.
(d) Any creditor of any member of the Group becomes entitled to
declare any Financial Indebtedness of any member of the Group
due and payable prior to its specified maturity as a result of
an event of default (however described) except, as long as
such event of default has not been declared, where the
relevant Borrower has made a waiver request and provided that
the relevant waiver is obtained within 10 Business Days
following the occurrence of the related event of default.
(e) No Event of Default will occur under this Clause 22.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d)
above is less than EUR 200,000,000 (or its equivalent in any
other currency or currencies).
22.6 INSOLVENCY
(a) A Borrower or any Material Subsidiary is unable or admits
inability to pay its debts as they fall due, suspends making
payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to rescheduling
any of its indebtedness.
(b) A Borrower or any Material Subsidiary which conducts business
in France is in a state of cessation des paiements, or a
Borrower or any Material Subsidiary becomes insolvent for the
purpose of any insolvency law.
(c) A moratorium is declared in respect of any indebtedness of a
Borrower or any Material Subsidiary.
22.7 INSOLVENCY PROCEEDINGS
(a) Any corporate action, legal proceedings or other procedure or
step is taken in relation to:
(i) the suspension of payments, a moratorium of any
indebtedness, winding-up, dissolution, administration
or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of a Borrower or
any Material Subsidiary other than a solvent
liquidation or reorganisation of any member of the
Group which is not an Obligor;
(ii) the appointment of a liquidator (other than in
respect of a solvent liquidation of a member of the
Group which is not an Obligor), receiver,
administrator, administrative receiver, compulsory
manager or other similar officer in respect of a
Borrower or any Material Subsidiary or any of its
assets;
(iii) enforcement of any Security over any assets of a
Borrower or any Material Subsidiary in respect of
claim(s) in excess in aggregate of EUR 100,000,000;
or
- 59 -
(b) any analogous procedure or step is taken in any jurisdiction.
(c) A Borrower or any Material Subsidiary commences proceedings
for reglement amiable in accordance with articles L.611-3 to
L.611-6 of the French Code de Commerce (or any analogous
procedure is commenced in any relevant jurisdiction).
(d) A judgement for redressement judiciaire, cession totale de
l'entreprise or liquidation judiciaire is entered in relation
to the Company or any member of the Group under articles
L.620-1 to L.628-3 of the French Code de Commerce (or any
analogous judgment is rendered in any relevant jurisdiction).
22.8 CREDITORS' PROCESS
Any of the enforcement proceedings provided for in French law no.91-650
of 9 July 1991, or any expropriation, attachment, sequestration,
distress or execution affects any asset or assets of a member of the
Group having an aggregate value of 100,000,000 and, in respect of
conservatory proceedings only, is not discharged within 15 Business
Days.
22.9 MATERIAL ADVERSE CHANGE
A Material Adverse Effect occurs.
22.10 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may without mise en demeure or any other judicial
or extra judicial step, and shall if so directed by the Majority
Lenders, by notice to the Company but subject to the mandatory
provisions of articles L.620-1 to L.628-3 of the French Code de
Commerce:
(a) cancel the Total Commitments whereupon they shall immediately
be cancelled; and/or
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under
the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable.
22.11 NEW SUBSIDIARIES
Any event or circumstances which would otherwise constitute an Event of
Default and which would exist only in relation to any entity becoming a
member of the Group and which only:
(a) occurred or existed before the date on which such entity
became a member of the Group; or
(b) arose as a result of such entity having become a member of the
Group
will not constitute an Event of Default or entitle the Agent, or
entitle the Lenders to instruct the Facility Agent, to make a
declaration under Clause 22.10 (Acceleration) unless the event or
circumstances continue for a period of 180 days or such shorter
- 60 -
period of time as may be provided for under Clause 18.15
(Non-Applicability) after the date on which such company becomes a
member of the Group or such event or circumstances recur after the
expiry of such period.
- 61 -
SECTION 8
CHANGES TO PARTIES
23. CHANGES TO THE LENDERS
23.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
(a) Subject to this Clause 23, a Lender (the "EXISTING LENDER")
may:
(i) assign any of its rights; or
(ii) transfer any of its rights (including such as relate
to that Lender's participation in each Loan) and
obligations,
to another bank or financial institution (the "NEW LENDER").
(b) The consent of the Finance Parties is hereby given to a
transfer by an Existing Lender to a New Lender.
23.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Company is required for an assignment or
transfer by a Lender, provided that:
(i) in the case of an assignment, no consent is required
if the assignment is to another Lender or an
Affiliate of a Lender or following the occurrence of
an Event of Default which is continuing, and
(ii) the Company hereby consents to a transfer to another
Lender or an Affiliate of a Lender.
(b) The consent of the Company to an assignment or transfer must
not be unreasonably withheld or delayed. The Company will be
deemed to have given its consent ten Business Days after the
Lender has requested it unless consent is expressly refused by
the Company within that time.
(c) The consent of the Company to an assignment or transfer must
not be withheld solely because the assignment or transfer may
result in an increase to the Mandatory Cost.
(d) A Lender may assign or transfer all of part of its Commitments
in any of the Facilities on a non prorata basis between the
Facilities.
(e) Any transfer and assignment shall be of a minimum amount of
EUR 10,000,000.
(f) An assignment will only be effective as among the Finance
Parties on receipt by the Agent of written confirmation from
the New Lender (in form and substance satisfactory to the
Agent) that the New Lender has become entitled to the same
rights and will assume the same obligations to the other
Finance Parties as it would have been under if it was an
Original Lender.
- 62 -
(g) A transfer will only be effective if the procedure set out in
Clause 23.5 (Procedure for transfer) is complied with.
(h) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes
its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office
under Clause 13 (Tax gross-up and indemnities),
Clause 14 (Increased Costs) or Schedule 4 (Mandatory
Cost formulae).
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent
as the Existing Lender or Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
23.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
EUR 1,000.
23.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document or any other document,
and any representations or warranties implied by law are
excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor and
its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by the
Existing Lender in connection with any Finance
Document; and
- 63 -
(ii) will continue to make its own independent appraisal
of the creditworthiness of each Obligor and its
related entities whilst any amount is or may be
outstanding under the Finance Documents or any
Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 23; or
(ii) support any losses directly or indirectly incurred by
the New Lender by reason of the non-performance by
any Obligor of its obligations under the Finance
Documents or otherwise.
23.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 23.2 (Conditions
of assignment or transfer) a transfer is effected in
accordance with paragraph (b) below when the Agent executes an
otherwise duly completed Transfer Agreement delivered to it by
the Existing Lender and the New Lender. The Agent shall, as
soon as reasonably practicable after receipt by it of a duly
completed Transfer Agreement appearing on its face to comply
with the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Transfer
Agreement.
(b) By virtue of the execution of a Transfer Agreement, as from
the Transfer Date:
(i) to the extent that in the Transfer Agreement the
Existing Lender seeks to transfer its rights and
obligations under the Finance Documents, the Existing
Lender shall be discharged to the extent provided for
in the Transfer Agreement from further obligations
towards each of the Obligors and the other Finance
Parties under the Finance Documents;
(ii) the rights and obligations of the Existing Lender
with respect to the Obligors shall be transferred to
the New Lender, to the extent provided for in the
Transfer Agreement;
(iii) the Agent, the Mandated Lead Arrangers, the New
Lender and other Lenders shall have the same rights
and obligations between themselves as they would have
had had the New Lender been an Original Lender with
the rights and/or obligations to which it is entitled
and subject as a result of the transfer and to that
extent the Agent, the Mandated Lead Arrangers and the
Existing Lender shall each be released from further
obligations to each other under the Finance
Documents; and
(iv) the New Lender shall become a Party as a "LENDER".
23.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
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(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs
(a) and (b) above, the person to whom the information is to be given
has entered into a Confidentiality Undertaking.
24. CHANGES TO THE OBLIGORS
24.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Borrower may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
24.2 ADDITIONAL BORROWERS
(a) The Company may request that any of its Subsidiaries
(including Target and its Subsidiaries upon their becoming a
member of the Group) becomes an Additional Borrower. That
Subsidiary shall become an Additional Borrower if:
(i) the Majority Lenders approve the addition of that
Subsidiary and agree with the Company upon a
borrowing limit in respect of such Subsidiary unless
it is Target;
(ii) the Company delivers to the Agent a duly completed
and executed Accession Letter;
(iii) the Company confirms that no Default is continuing or
would occur as a result of that Subsidiary becoming
an Additional Borrower;
(iv) the Agent has received all of the documents and other
evidence listed in Part III of Schedule 2 (Conditions
precedent required to be delivered by an Additional
Borrower) in relation to that Additional Borrower,
each in form and substance satisfactory to the Agent;
and
(v) the Company has issued a Guarantee in relation to the
obligations of that Additional Borrower under this
Agreement.
(b) The Agent shall notify the Company and the Lenders promptly
upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part III of Schedule 2 (Conditions
precedent required to be delivered by an Additional Borrower).
- 65 -
(c) No more than 7 Subsidiaries shall at any time be party to this
Agreement as Additional Borrowers.
24.3 RESIGNATION OF A BORROWER
(a) The Company may request that a Borrower (other than the
Company) ceases to be a Borrower by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the
Company and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the Company
has confirmed this is the case); and
(ii) the Borrower is under no actual or contingent
obligations as a Borrower under any Finance
Documents,
whereupon that company shall cease to be a Borrower and shall
have no further rights or obligations under the Finance
Documents.
24.4 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the
relevant Subsidiary that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
- 66 -
SECTION 9
THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS
25.1 APPOINTMENT OF THE AGENT
(a) Each other Finance Party appoints the Agent to act as its
agent under and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given
to the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities
and discretions.
25.2 DUTIES OF THE AGENT
(a) The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
(b) Except where a Finance Document specifically provides
otherwise, the Agent is not obliged to review or check the
adequacy, accuracy or completeness of any document it forwards
to another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the Finance Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance
Party (other than the Agent or the Mandated Lead Arrangers)
under this Agreement it shall promptly notify the other
Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
25.3 ROLE OF THE MANDATED LEAD ARRANGERS
Except as specifically provided in the Finance Documents, the Mandated
Lead Arrangers have no obligations of any kind to any other Party under
or in connection with any Finance Document.
25.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the
Mandated Lead Arrangers as a trustee or fiduciary of any other
person.
(b) Neither the Agent nor the Mandated Lead Arrangers shall be
bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
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25.5 BUSINESS WITH THE GROUP
The Agent and the Mandated Lead Arrangers may accept deposits from,
lend money to and generally engage in any kind of banking or other
business with any member of the Group.
25.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it
to be genuine, correct and appropriately authorised;
and
(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 22.1
(Non-payment));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Company (other than
a Utilisation Request or Selection Notice) is made on
behalf of and with the consent and knowledge of all
the Obligors.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Mandated Lead
Arrangers is obliged to do or omit to do anything if it would
or might in its reasonable opinion constitute a breach of any
law or regulation or a breach of a fiduciary duty or duty of
confidentiality.
25.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document,
the Agent shall exercise any right, power, authority or
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising
any right, power, authority or discretion vested in it as
Agent) and (b) not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with
an instruction of the Majority Lenders.
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(b) Unless a contrary indication appears in a Finance Document,
any instructions given by the Majority Lenders will be binding
on all the Finance Parties.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender in
any legal or arbitration proceedings relating to any Finance
Document, without having first obtained that Lender's
authority to act on its behalf in those proceedings.
25.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Mandated Lead Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, the Mandated Lead Arrangers, an Obligor or any other
person given in or in connection with any Finance Document or
the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any
other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance
Document.
25.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be
liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party (other than the Agent) may take any proceedings
against any officer, employee or agent of the Agent in respect
of any claim it might have against the Agent or in respect of
any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer,
employee or agent of the Agent may rely on this Clause.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the
Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
25.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior
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to their reduction to zero) indemnify the Agent, within three Business
Days of demand, against any cost, loss or liability incurred by the
Agent (otherwise than by reason of the Agent's gross negligence or
wilful misconduct) in acting as Agent under the Finance Documents
(unless the Agent has been reimbursed by an Obligor pursuant to a
Finance Document).
25.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in France as successor by giving notice to
the other Finance Parties and the Company.
(b) Alternatively the Agent may resign by giving notice to the
other Finance Parties and the Company, in which case the
Majority Lenders (after consultation with the Company) may
appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Company) may appoint a successor Agent (acting
through an office in France).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 25. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Company, the Majority Lenders may,
by notice to the Agent, require it to resign in accordance
with paragraph (b) above. In this event, the Agent shall
resign in accordance with paragraph (b) above.
25.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions
or departments.
(b) If information is received by another division or department
of the Agent, it may be treated as confidential to that
division or department and the Agent shall not be deemed to
have notice of it.
25.13 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
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(b) Each Lender shall supply the Agent with any information
required by the Agent in order to calculate the Mandatory Cost
in accordance with Schedule 4 (Mandatory Cost formulae).
25.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and the Mandated Lead
Arrangers that it has been, and will continue to be, solely responsible
for making its own independent appraisal and investigation of all risks
arising under or in connection with any Finance Document including but
not limited to:
(a) the financial condition, status and nature of each member of
the Group;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective
assets under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent,
any Party or by any other person under or in connection with
any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.
25.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
25.16 DEDUCTION FROM AMOUNTS PAYABLE BY THE AGENT
If any Party owes an amount to the Agent under the Finance Documents
the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount
owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
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26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating
to its affairs (tax or otherwise) or any computations in
respect of Tax.
27. SHARING AMONG THE FINANCE PARTIES
27.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers
any amount from an Obligor other than in accordance with Clause 28
(Payment mechanics) and applies that amount to a payment due under the
Finance Documents then:
(a) the Recovering Finance Party shall, within three Business
Days, notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Finance Party would
have been paid had the receipt or recovery been received or
made by the Agent and distributed in accordance with Clause 28
(Payment mechanics), without taking account of any Tax which
would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days
of demand by the Agent, pay to the Agent an amount (the
"SHARING PAYMENT") equal to such receipt or recovery less any
amount which the Agent determines may be retained by the
Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 28.5 (Partial payments).
27.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Finance Party) in accordance with Clause 28.5
(Partial payments).
27.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Agent under Clause 27.2
(Redistribution of payments), the Recovering Finance Party
will be subrogated to the rights of the Finance Parties which
have shared in the redistribution which Finance Parties agree
that they will in that connection waive the benefit of Article
1252 of the French Code Civil.
(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is
immediately due and payable.
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27.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 27.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent
for account of that Recovering Finance Party an amount equal
to the appropriate part of its share of the Sharing Payment
(together with an amount as is necessary to reimburse that
Recovering Finance Party for its proportion of any interest on
the Sharing Payment which that Recovering Finance Party is
required to pay); and
(b) that Recovering Finance Party's rights of subrogation in
respect of any reimbursement shall be cancelled and the
relevant Obligor will be liable to the reimbursing Finance
Party for the amount so reimbursed.
27.5 EXCEPTIONS
(a) This Clause 27 shall not apply to the extent that the
Recovering Finance Party would not, after making any payment
pursuant to this Clause, have a valid and enforceable claim
against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any
other Finance Party any amount which the Recovering Finance
Party has received or recovered as a result of taking legal or
arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to
participate in those legal or arbitration proceedings
but did not do so as soon as reasonably practicable
having received notice and did not take separate
legal or arbitration proceedings.
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SECTION 10
ADMINISTRATION
28. PAYMENT MECHANICS
28.1 PAYMENTS TO THE AGENT
(a) On each date on which a Borrower or a Lender is required to
make a payment under a Finance Document, that Borrower or
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal
financial centre of the country of that currency (or, in
relation to euro, in a principal financial centre in a
Participating Member State or London) with such bank as the
Agent specifies.
28.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 28.3 (Distributions to an
Obligor) and Clause 28.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a
Participating Member State or London).
28.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Borrower or in accordance with
Clause 29 (Set-off)) apply any amount received by it for that Borrower
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Borrower under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
28.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of
funds.
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28.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that
payment towards the obligations of that Obligor under the
Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent under the
Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any
accrued interest or commission due but unpaid under
this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
28.6 NO SET-OFF BY BORROWERS
All payments to be made by a Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
28.7 BUSINESS DAYS
(a) Any payment (other than an Acquisition Payment) which is due
to be made on a day that is not a Business Day shall be made
on the next Business Day in the same calendar month (if there
is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on
the original due date.
28.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is
the currency of account and payment for any sum due from a
Borrower under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
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(d) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
the Base Currency shall be paid in that other currency.
28.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the
central bank of any country as the lawful currency of that
country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated
into, or paid in, the currency or currency unit of
that country designated by the Agent (after
consultation with the Company); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and
after consultation with the Company) specifies to be
necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.
29. SET-OFF
A Finance Party may set off any matured obligation due from a Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance
Party to that Borrower, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off.
30. NOTICES
30.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
30.2 ADDRESSES
The address, fax number and telex number (and the department or
officer, if any, for whose attention the communication is to be made)
of each Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:
(a) in the case of the Company, that identified with its name
below;
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(b) in the case of each Lender or the Company, that notified in
writing to the Agent on or prior to the date on which it
becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify
to the other Parties, if a change is made by the Agent) by not less
than five Business Days' notice.
30.3 DELIVERY
(a) Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(iii) if by way of telex, when despatched, but only if, at
the time of transmission, the correct answerback
appears at the start and at the end of the sender's
copy of the notice;
and, if a particular department or officer is specified as part of its
address details provided under Clause 30.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the
Agent and then only if it is expressly marked for the
attention of the department or officer identified with the
Agent's signature below (or any substitute department or
officer as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the Company
in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
30.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 30.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
30.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Agent and a Lender
under or in connection with the Finance Documents may be made
by electronic mail or other electronic means, if the Agent and
the relevant Lender:
(i) agree that, unless and until notified to the
contrary, this is to be an accepted form of
communication;
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(ii) notify each other in writing of their electronic mail
address and/or any other information required to
enable the sending and receipt of information by that
means; and
(iii) notify each other of any change to their address or
any other such information supplied by them.
(b) Any electronic communication made between the Agent and a
Lender will be effective only when actually received in
readable form and in the case of any electronic communication
made by a Lender to the Agent only if it is addressed in such
a manner as the Agent shall specify for this purpose.
30.6 LANGUAGE
(a) Any notice given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be in English or in French (if not
available in English).
31. CALCULATIONS AND CERTIFICATES
31.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
31.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
31.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
32. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies
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provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
34. CONFIDENTIALITY
34.1 CONFIDENTIALITY UNDERTAKING
Each of the Finance Parties undertakes to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by Clause 34.2, to ensure that the Confidential
Information is protected with security measures and a degree of care
that would apply to its own confidential information, and to use the
Confidential Information solely for the purposes of this Agreement.
34.2 PERMITTED DISCLOSURE
The Company acknowledges and agrees that the Finance Parties (or any of
them) may disclose Confidential Information:
(a) to their affiliates and their officers, directors, employees
and professional advisers to the extent strictly necessary for
the purposes of this Agreement and to any auditors of any such
affiliate and provided in each case that such person shall
agree to be bound by the same confidentiality undertaking as
set out in Clause 34.1 (to the extent that they do not have a
duty of confidentiality by their status or otherwise);
(b) (i) where requested or required by any court of competent
jurisdiction, any arbitration or other legal proceedings or
any competent judicial, governmental, supervisory or
regulatory body, (ii) where required by the rules of any stock
exchange on which its or the shares or other securities of any
affiliate or of the Company or Target are listed or (iii)
where required by the laws or regulations of any country with
jurisdiction over its or the affairs of any affiliate or over
the affair of the Company or Target;
(c) to any prospective lender or assignee which acknowledges in
written form and accepts to be bound by the provisions of this
Clause 34 and which undertakes to use the Confidential
Information only for considering and evaluating whether to
enter into the Facility; or
(d) with the prior written consent of the Company.
34.3 NOTIFICATION OF REQUIRED DISCLOSURE
Each of the Finance Parties agrees (to the extent permitted by law
other than disclosed to any regulatory body made in the normal course
of such regulatory body's supervisory function) to inform the Company
of any disclosure under Clause 34.2(b).
34.4 INSIDER DEALING
Each of the Finance Parties acknowledges that some or all of the
Confidential Information is or may be price-sensitive information and
that the use of such information may be regulated or prohibited by
applicable legislation relating to insider dealing and undertakes not
to use any Confidential Information for any unlawful purpose.
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34.5 DURATION
The confidentiality undertaking of the Finance Parties hereunder shall
expire in respect of each Confidential Information twelve Months after
it is first delivered to the Finance Parties hereunder.
35. AMENDMENTS AND WAIVERS
35.1 REQUIRED CONSENTS
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and any such amendment
or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
35.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or
which relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount
under the Finance Documents;
(iii) a reduction in any Margin or a reduction in the
amount of any payment of principal, interest, fees or
commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrowers or Guarantors other than in
accordance with Clause 24 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of
all the Lenders;
(vii) Clause 2.2 (Finance Parties' rights and obligations),
Clause 23 (Changes to the Lenders) or this Clause 35;
or
(viii) Clause 8.4 (Mandatory Cancellation) and Clause 8.10
(Mandatory prepayment and cancellation from Net Cash
Proceeds),
shall not be made without the prior consent of all the
Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of the Agent or the Mandated Lead Arrangers may
not be effected without the consent of the Agent or the
Mandated Lead Arrangers.
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SECTION 11
GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by French law.
37. ENFORCEMENT - JURISDICTION OF FRENCH COURTS
37.1 The Tribunal de Commerce de Paris has exclusive jurisdiction to settle
any dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination
of this Agreement) (a "Dispute").
37.2 Clause 37.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.
38. ELECTION OF DOMICILE
Without prejudice to any other mode of service allowed under any
relevant law, each Additional Borrower irrevocably elects domicile at
the corporate seat (siege social) of the Company in Paris for the
purpose of serving any judicial or extra-judicial documents in relation
to any action or proceedings referred to above.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
- 81 -
SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGOR
Name of the Borrower Registration number
SANOFI-SYNTHELABO SA 395 030 844 RCS Paris
- 82 -
PART II
THE ORIGINAL LENDERS
NAME OF ORIGINAL FACILITY A FACILITY B FACILITY C
LENDER COMMITMENT COMMITMENT COMMITMENT
----------------------------------------------------------------------------------------------
BNP PARIBAS SA
16 des Italiens EUR 2,666,666,667 EUR 2,666,666,667 EUR 2,666,666,667
00000 Xxxxx
662 042 449 RCS Paris
----------------------------------------------------------------------------------------------
XXXXXXX XXXXX CREDIT
PRODUCTS LLC
Corporation Trust Center EUR 1,333,333,333 EUR 1,333,333,333 EUR 1,333,333,333
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
XXX
----------------------------------------------------------------------------------------------
- 83 -
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO SIGNING
1. CORPORATE DOCUMENTATION
(a) A K-bis extract for the Company, not more than one Month old
prior to the date of signing.
(b) A certified copy of the constitutive documents (statuts) of
the Company.
(c) Evidence that the person(s) who has signed the Finance
Documents on behalf of the Company was duly authorised so to
sign.
(d) A copy of a resolution of the board of directors of the
Company approving the terms of the Finance Documents to which
the Company is a party and authorising a specified person or
persons, on its behalf, to execute those Finance Documents.
(e) A specimen of the signature of each person referred to in
paragraph (c) above and of each person authorised by the
resolution referred to in paragraph (d) above.
(f) A certificate of an authorised signatory of the Company
certifying that each copy document relating to it specified in
this Part I of Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
2. LEGAL OPINION
(a) A legal opinion of Linklaters, legal advisers to the Company
in France, as to due authorisation and due authority
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
3. OTHER DOCUMENTS AND EVIDENCE
(a) A copy of any other Authorisation or other document, opinion
or assurance which the Agent considers to be necessary or
desirable (if it has notified the Company accordingly) in
connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance Document.
(b) The Original Financial Statements of the Company.
(c) Evidence that the fees, costs and expenses then due from the
Company pursuant to Clause 12 (Fees) and Clause 17 (Costs and
expenses) have been paid or will be paid by the first
Utilisation Date.
- 84 -
PART II
CONDITIONS PRECEDENT TO UTILISATION ON THE SETTLEMENT DATES
1. CONDITIONS PRECEDENT TO UTILISATION ON EACH ORIGINAL OFFER SETTLEMENT
DATE
(a) A copy of the press release from the Company announcing the
Original Offer, substantially in the form agreed by the
Lenders before signing together with any press release, if
any, announcing amendments to the Original Offer (such press
release to be substantially in the form previously agreed by
the Lenders where such agreement is required pursuant Clause
21.8 (Offer));
(b) a copy of any note d'information filed by the Company with the
AMF in connection with the Original Offer substantially in the
form agreed by the Lenders before signing;
(c) a copy of a resolution of the meeting of the shareholders of
the Company approving the issue of the Company's Consideration
Shares;
(d) a copy of a resolution of the board of directors deciding the
issue of the Company's Consideration Shares;
(e) a certificate from the directeur general of the Company
confirming that the Company has complied with its obligations
relating to the Original Offer;
(f) a certificate from the directeur general of the Company
confirming that all the conditions to the Original Offer have
been met;
(g) a copy of the Original Offer Result Notice indicating that the
Original Offer has been successful.
2. CONDITIONS PRECEDENT TO UTILISATION ON EACH ADDITIONAL OFFER SETTLEMENT
DATE (IF ANY)
(a) A copy of the press release from the Company announcing the
Additional Offer;
(b) a copy, as the case may be, of any note d'information filed by
the Company with the AMF in connection with the Additional
Offer;
(c) a copy of a resolution of the board of directors or, as
applicable, of a decision of the chairman of the board of
directors deciding the issue of the Company's Consideration
Shares relating to the Additional Offer;
(d) a certificate from the directeur general of the Company
confirming that the Company has complied with its obligations
relating to the Additional Offer;
(e) a copy of the Additional Offer Result Notice.
- 85 -
3. CONDITIONS PRECEDENT TO UTILISATION ON EACH SQUEEZE-OUT OFFER
SETTLEMENT DATE (IF ANY)
(a) A copy of the press release from the Company announcing the
Squeeze-Out Offer;
(b) a copy, as the case may be, of any notice filed by the Company
with the AMF in connection with the Squeeze-Out Offer;
(c) a certificate from the directeur general of the Company
confirming that the Company has complied with its obligations
relating to the Squeeze-Out Offer;
(d) a copy of Squeeze-Out Offer result notice.
- 86 -
PART III
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED IN RESPECT OF AN ADDITIONAL BORROWER
1. An Accession Letter, duly executed by that Additional Borrower and the
Company.
2. A K-bis extract (or the equivalent thereof) for the Additional Borrower
not more than one Month old.
3. A copy of the constitutional documents of the Additional Borrower.
4. Evidence that the person(s) who has signed the Accession Letter on
behalf of that Additional Borrower and the Company was duly authorised
so to sign.
5. A copy of a resolution of the board of directors of the Company taken
in accordance with article L.225-35 of the French Code de Commerce
approving the terms of the Guarantee granted by it, and authorising a
specified person or persons on its behalf, to execute that Guarantee.
6. A specimen of the signature of each person referred to in paragraph 4
above and of each person authorised by the resolution referred to in
paragraph 5 above.
7. A certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part III of Schedule
2 is correct, complete and in full force and effect as at a date no
earlier than the date of the Accession Letter or, as the case may be,
the Guarantee.
8. A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of the transactions
contemplated by the Accession Letter or, as the case may be, the
Guarantee or for the validity and enforceability of any Finance
Document.
9. A copy of the Original Financial Statements of the Additional Borrower.
10. A copy of the Guarantee in respect of the Additional Borrower duly
executed by the Guarantor.
11. A legal opinion of Linklaters, legal advisers to the Company, as to due
authorisation and due authority of the Company in respect of the
Accession Letter and the Guarantee and of the Additional Borrower in
respect of the Accession Letter in a form reasonably satisfactory to
the Agent.
- 87 -
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
- 88 -
A - UTILISATION REQUEST IN RELATION TO AN ACQUISITION LOAN
From: [Presenting Bank]
To: [Agent]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 12,000,000,000 FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. This Utilisation Request is delivered by ourselves in our capacity of
Presenting Bank in accordance with the provisions of Clause 5.3 of the
Agreement (Utilisation Request by the Presenting Bank) for the purpose
of financing an Acquisition Payment.
3. We wish to utilise a Loan on the following terms:
Proposed Utilisation Date: [relevant Settlement Date]
Facility to be utilised: [Facility A]/[Facility B]
Currency of Loan: EUR
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
4. This Utilisation Request constitutes a confirmation by the Company that
each condition specified in [Clause 4.2(a)/Clause 4.2(b)/Clause 4.2(c)]
is satisfied on the date of this Utilisation Request.
5. The proceeds of this Loan should be credited to [Settlement Account].
6. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of the Presenting Bank]
- 89 -
B- UTILISATION REQUEST FOR FACILITY C LOANS
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 12,000,000,000 FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business
Day, the next Business Day)
Facility to be utilised: Facility C
Currency of Loan: [ ]
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.3 (Conditions
precedent to Utilisation under Facility C) is satisfied on the date of
this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of relevant Borrower]
- 90 -
PART II
SELECTION NOTICE
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 12,000,000,000 FACILITY AGREEMENT
DATED [ ] (THE " AGREEMENT")
1. We refer to the Agreement. This is the Selection Notice. Terms defined
in the Agreement have the same meaning in this Selection Notice unless
given a different meaning in this Selection Notice.
2. We request that Interest Periods under Facility A Loans have a duration
of [2/3/6] months as from the next Interest Period beginning
immediately after the date of this Selection Notice until the Facility
A Final Maturity Date.
3. We request that Interest Periods under Facility B Loans have a duration
of [2/3/6] months as from the next Interest Period beginning
immediately after the date of this Selection Notice until the Facility
B Final Maturity Date.
4. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
the Company
- 91 -
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank. Mandatory Costs
will be charged only if and to the extent that the applicable Lender
certifies that such costs are effectively and commonly charged by that
Lender to the vast majority of its customers in connection with
facilities of similar size to the Facility.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(the ADDITIONAL COST RATE) for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender
in its notice to the Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender's participation in all
Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans
made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming
these to be in excess of any stated minimum) which
that Lender is from time to time required to maintain
as an interest free cash ratio deposit with the Bank
of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the
Margin and the Mandatory Cost and, if the Loan is an
Unpaid Sum, the additional rate of interest specified
in paragraph (a) of clause 9.7 (Default interest))
payable for the relevant Interest Period on the Loan.
- 92 -
C is the percentage (if any) of Eligible Liabilities
which that Lender is required from time to time to
maintain as interest bearing Special Deposits with
the Bank of England.
D is the percentage rate per annum payable by the Bank
of England to the Agent on interest bearing Special
Deposits.
E is designed to compensate Lenders for amounts payable
under the Fees Rules and is calculated by the Agent
as being the average of the most recent rates of
charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 and expressed in pounds per
(pound)1,000,000.
5. For the purposes of this Schedule:
(a) ELIGIBLE LIABILITIES and SPECIAL DEPOSITS have the meanings
given to them from time to time under or pursuant to the Bank
of England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) FEES RULES means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may
be in force from time to time in respect of the payment of
fees for the acceptance of deposits;
(c) FEE TARIFFS means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate);
and
(d) TARIFF BASE has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in pounds per (pound)1,000,000 of
the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require
for such purpose.
- 93 -
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 and on the assumption that, unless a
Lender notifies the Agent to the contrary, each Lender's obligations in
relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 is true
and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8.
12. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
13. The Agent may from time to time, after consultation with the Company
and the Lenders, determine and notify to all Parties any amendments
which are required to be made to this Schedule in order to comply with
any change in law, regulation or any requirements from time to time
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
- 94 -
SCHEDULE 5
FORM OF TRANSFER AGREEMENT
This Transfer Agreement is made on [ ]
BETWEEN:
(1) [ ] (the "EXISTING LENDER")
AND:
(2) [ ] (the "NEW LENDER")
WHEREAS:
(A) The Existing Lender has entered into a euro term loan facility in an
aggregate amount equal to [...] (figures and letters), a euro term loan
facility in an aggregate amount equal to [...] (figures and letters)
and a multicurrency revolving loan facility in an aggregate amount
equal to [...] (figures and letters) under a facility agreement dated
[...] January 2004, between the Company, the Financial Institutions
listed in Part II of Schedule 1 to that Facility Agreement, BNP Paribas
and Xxxxxxx Xxxxx Credit Products acting as Mandated Lead Arrangers,
and BNP Paribas acting as Agent of the Lenders (the "Facility
Agreement").
[The Additional Borrowers listed in Schedule 1 attached to this
Transfer Agreement have become "Additional Borrowers" in accordance
with clause 24.2 of the Facility Agreement (Additional Borrowers).]
(B) The Existing Lender wishes to transfer and the New Lender wishes to
acquire [all] [the part specified in Schedule 2 of this Transfer
Agreement] of the Existing Lender's Commitment, rights and obligations
referred to in Schedule 2 to this Transfer Agreement.
(C) Terms defined in the Facility Agreement have the same meaning when used
in this Transfer Agreement.
IT IS AGREED AS FOLLOWS:
1. The Existing Lender and the New Lender agree to the transfer (cession)
of [all] [the part specified in Schedule 2 of this Transfer Agreement]
of the Existing Lender's Commitment, rights and obligations referred to
in Schedule 2 to this Transfer
- 95 -
Agreement in accordance with Clause 23.5 of the Facility Agreement
(Procedure for transfer).(a)
2. The proposed Transfer Date is [...].
3. The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 30.2 (Addresses)
are set out in Schedule 2 of this Transfer Agreement.
4. The New Lender acknowledges the limitations on the Existing Lender's
liabilities set out in paragraph (c) of Clause 23.4 (Limitation of
responsibility of Existing Lenders) of the Facility Agreement.
5. The New Lender confirms to the other Finance Parties represented by the
Agent that it will assume the same obligations to those Parties as it
would have been under if it was an Original Lender
6. This Transfer Agreement is governed by French law. The Tribunal of
Commerce of Paris shall have jurisdiction in relation to any dispute
concerning it.
SCHEDULE 1
NAME OF ADDITIONAL BORROWERS
SCHEDULE 2
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments]
[Existing Lender] [New Lender]
By: By:
This Transfer Agreement is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
--------------------------
(a) The New Lender may, in the case of a transfer of rights by the Existing
Lender under this Transfer Agreement, if it considers it necessary to
make the transfer effective as against third parties, arrange for it to
be notified by way of signification to the Obligors in accordance with
article 1690 of the French Code Civil.
- 96 -
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 12,000,000,000 FACILITY AGREEMENT DATED [ ] JANUARY 2004
(THE "FACILITY AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms defined
in the Agreement have the same meaning in this Accession Letter unless
given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Borrower and to be bound by
the terms of the Facility Agreement as an Additional Borrower pursuant
to Clause 24.2 (Additional Borrowers) of the Agreement. [Subsidiary] is
a company duly incorporated under the laws of [name of relevant
jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter is governed by French law.
[Company] [Subsidiary]
Accepted by the Agent
- 97 -
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
SANOFI-SYNTHELABO - EUR 12,000,000,000 FACILITY AGREEMENT DATED [ ] JANUARY 2004
(THE "FACILITY AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined
in the Agreement have the same meaning in this Resignation Letter
unless given a different meaning in this Resignation Letter.
2. Pursuant to Clause 24.3 (Resignation of a Borrower), we request that
[resigning Borrower] be released from its obligations as a Borrower
under the relevant Finance Document.
3. We confirm that:
(a) no Default is continuing or would result from the acceptance
of this request; and
(b) no amounts remains due by the [resigning Obligor] under any
Finance Documents. *
4. This Resignation Letter is governed by French law.
[Company] [Subsidiary]
By: By:
----------------------------
* Insert any other conditions required by the Agreement.
- 98 -
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: BNP Paribas as Agent
From: The Company
Dated:
Dear Sirs,
SANOFI-SYNTHELABO - EUR 12,000,000,000 FACILITY AGREEMENT DATED [ ] JANUARY 2004
(THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Compliance Certificate as
such term is defined in the Facility Agreement. Terms defined in this
Compliance Certificate shall have the meanings ascribed to them in the
Facility Agreement unless given a different meaning in this Compliance
Certificate.
2. We confirm that: [Insert details of covenants to be certified]
3. [We confirm that no Default is continuing.]*
Signed: ...
..................
Chief Financial Officer or Chief Executive Officer
of Sanofi-Synthelabo
-----------------------
* If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it.
- 99 -
SCHEDULE 9
EXISTING SECURITY
NONE
- 100 -
SCHEDULE 10
FORM OF CONFIDENTIALITY UNDERTAKING
[LETTERHEAD OF SELLER/SELLER'S AGENT/BROKER]
To:
[insert name of Potential
Purchaser/Purchaser's
agent/broker]
Re: THE AGREEMENT
BORROWER: SANOFI-SYNTHELABO
DATE: [ ]
AMOUNT: EUR 12,000,000,0000
AGENT: BNP PARIBAS
Dear Sirs,
We understand that you are considering [acquiring]/[arranging the acquisition
of] an interest in the Facility Agreement (the "ACQUISITION"). In consideration
of us agreeing to make available to you certain information, by your signature
of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care
that would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]
below) acknowledges and complies with the provisions of this letter as
if that person were also a party to it, and (d) not to make enquiries
of any member of the Group or any of their officers, directors,
employees or professional advisers relating directly or indirectly to
the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Purchaser Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Purchaser Group;
- 101 -
[(b) subject to the requirements of the Agreement, in accordance
with the Permitted Purpose so long as any prospective
purchaser has delivered a letter to you in equivalent form
to this letter;]
[(b/c)](c) subject to the requirements of the Agreement, to any
person to (or through) whom you assign or transfer (or may
potentially assign or transfer) all or any of the rights,
benefits and obligations which you may acquire under the
Agreement or with (or through) whom you enter into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to
be made by reference to, the Agreement or the Borrowers or
any member of the Group so long as that person has
delivered a letter to you in equivalent form to this
letter; and
[(c/d)](c) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Purchaser Group are listed
or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of
the Purchaser Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)](c) or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or
permanently erase all copies of Confidential Information made by you
and use all reasonable endeavours to ensure that anyone to whom you
have supplied any Confidential Information destroys or permanently
erases such Confidential Information and any copies made by them, in
each case save to the extent that you or the recipients are required to
retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph
2[(c)/(d)](c) above.
5. Continuing Obligations The obligations in this letter are continuing
and, in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (a) if you become a party to
or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Agreement or (b) twelve months after you
have returned all Confidential Information supplied to you by us and
destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies
which have been disclosed under paragraph 2 above (other than
sub-paragraph 2(a)) or which, pursuant to paragraph 4 above, are not
required to be returned or destroyed).
6. No Representation, Consequences of Breach, etc. You acknowledge and
agree that:
(a) neither we, [nor our principal] nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "RELEVANT PERSON") (i) make any
representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any
other information supplied by us
- 102 -
or the assumptions on which it is based or (ii) shall be under
any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by
us or be otherwise liable to you or any other person in
respect to the Confidential Information or any such
information; and
(b) we [or our principal](d) or members of the Group may be
irreparably harmed by the breach of the terms hereof and
damages may not be an adequate remedy; each Relevant Person
may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter
by you.
7. No Waiver; Amendments, etc. This letter sets out the full extent of
your obligations of confidentiality owed to us in relation to the
information subject of this letter. No failure or delay in exercising
any right, power or privilege hereunder will operate as a waiver
thereof nor will any single or partial exercise of any right, power or
privilege preclude any further exercise thereof or the exercise of any
other right, power or privileges hereunder. The terms of this letter
and your obligations hereunder may only be amended or modified by
written agreement between us.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use
of such information may be regulated or prohibited by applicable
legislation relating to insider dealing and you undertake not to use
any Confidential Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of [our principal,]d the Borrowers
and each other member of the Group.
10. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this
letter may be enforced and relied upon only by you and us.
(b) Notwithstanding any provisions of this letter, the parties to
this letter do not require the consent of any Relevant Person
or any member of the Group to rescind or vary this letter at
any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the laws of France and the parties
submit to the non-exclusive jurisdiction of the French courts.
12. Definitions In this letter (including the acknowledgement set out
below) terms defined in the Agreement shall, unless the context
otherwise requires, have the same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to either
Borrower, the Group, the Facility Agreement and/or the Acquisition
provided to you by us or any of our affiliates or advisers, in whatever
form, and includes information given orally and any document,
electronic file or any other way of representing or recording
information which contains or is derived or copied from such
information but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach of
this letter or (b) is known by you before the date the
- 103 -
information is disclosed to you by us or any of our affiliates or
advisers or is lawfully obtained by you thereafter, other than from a
source which is connected with the Group and which, in either case, as
far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
"GROUP" means Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies;
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing
on information to a prospective purchaser for the purpose of]b
considering and evaluating whether to enter into the Acquisition; and
"PURCHASER GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies.
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
...................................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
...................................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
- 104 -
SCHEDULE 11
TIMETABLES
LOANS IN AN OPTIONAL
LOANS IN EURO CURRENCY
Delivery of a duly completed 11 a.m Paris time 11 a.m Paris time
Utilisation Request (Clause 5.1 3 Business Days 3 Business Days prior to
(Utilisation under Facility A prior to the the proposed Utilisation
and Facility B) or Clause 5.2 proposed Utilisation Date
(Utilisation under Facility C) Date
Agent determines (in relation N/A 11 a.m London time
to a Utilisation) the Base 3 Business Days prior to
Currency Amount of the Loan, if the proposed Utilisation
required under Clause 5.4 Date
(Lenders' participation)
Agent notifies the Lenders of Promptly upon Promptly upon receipt from
the Loan in accordance with receipt from the the Borrower
Clause 5.4 (Lenders' Borrower
participation)
Agent receives a notification N/A Quotation Day as of 9 a.m.
from a Lender under Clause 6.2 Paris time
(Unavailability of a currency)
- 105 -
SCHEDULE 12
FORM OF GUARANTEE
FIRST DEMAND GUARANTEE (GARANTIE A PREMIERE DEMANDE) BETWEEN:
(1) SANOFI-SYNTHELABO, a French company whose registered office is at 000
xxxxxx xx Xxxxxx, 00000 Xxxxx, registered under identification number
395 030 844 RCS Paris, and represented by [ ], duly authorised for the
purposes hereof,
(hereinafter, the GUARANTOR)
(2) BNP PARIBAS, a French company whose registered office is at 00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered under identification
number 662 042 449 RCS Paris, acting as agent for the account and on
behalf of the Lenders (as defined below), and represented by [ ], duly
authorised for the purposes hereof,
(hereinafter, the AGENT)
WHEREAS:
(A) On [ ] January 2004, the Guarantor has entered into a EUR
12,000,000,000 facility agreement (the FACILITY AGREEMENT) with inter
alia BNP Paribas and Xxxxxxx Xxxxx Credit Products as mandated lead
arrangers, underwriters and joint-book runners, BNP Paribas and Xxxxxxx
Xxxxx Credit Products as original lenders and BNP Paribas as agent.
(B) Pursuant to an accession letter entered into on the date hereof between
the Additional Borrower (as defined below), the Guarantor and the Agent
(the ACCESSION LETTER), the Additional Borrower has acceded to the
Facility Agreement and is therefore entitled to borrow up to a maximum
amount of EUR [ ] (or its equivalent in certain other currencies) under
the Facility Agreement.
(C) The accession of the Additional Borrower has been made on the condition
that the Guarantor enters into this guarantee undertaking (the
GUARANTEE) upon the following terms and conditions.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
In this Guarantee except to the extent that the context requires
otherwise:
ADDITIONAL BORROWER means [name and description of the relevant
Additional Borrower];
LENDER means any financial institution which is a lender from time to
time under the Facility Agreement (whether originally or following a
transfer or an assignment made in accordance with the provisions of the
Facility Agreement).
- 106 -
2. GUARANTEE
(a) The Guarantor irrevocably undertakes in favour of the Agent (for the
benefit of the Lenders) to pay to it, upon first demand and in
accordance with the terms and conditions set out below, any sums up to
EUR [ ](b) (or the equivalent thereof in any other currency) as claimed
under the notice referred to below.
(b) The amounts referred to above shall be payable by the Guarantor to the
Agent upon first demand from the Agent and such demand shall be made by
way of a written notice sent to the Guarantor in the form set out in
the Schedule hereto. The Guarantor shall pay such amounts to the Agent
within 3 business days following receipt of the aforementioned notice.
(c) The Agent shall be entitled to make a single or several calls to the
Guarantor under this Guarantee, subject to not exceeding the overall
maximum amount as provided in Clause 2.(a).
(d) This Guarantee constitutes an independent, irrevocable and
unconditional undertaking (garantie autonome a premiere demande) by the
Guarantor, who expressly waives the right to rely on any exception
whatsoever, arising out of the relations between the Agent and/or the
Lenders and the Additional Borrower, for the purpose of deferring or
releasing itself from the performance of its obligations under this
Guarantee.
3. NO IMPAIRMENT
As a result of the independent nature of this Guarantee, the
Guarantor's obligations hereunder shall in no way be altered,
cancelled, reduced or deferred, and the Guarantor shall not be released
from performing such obligations, by any of, but not limited to, the
following events:
(a) The nullity, termination, cancellation or expiry of the
Facility Agreement or any of its provisions;
(b) any extension or renewal of the Facility Agreement, or any
amendment to any of its provisions, or
(c) any delay in exercising, failure to exercise or waiving by the
Agent and/or the Lenders of any right or means of recourse
available to each of them under the terms of the Facility
Agreement.
4. SUBROGATION/SUBORDINATION
(a) Upon payment of any amounts to the Agent under this Guarantee,
the Guarantor may, at its request, be subrogated up to the
relevant amount paid (and subject to the terms of Clause 4.(b)
below), at its expense and at its own risk, in the rights of
the Lenders as against the Additional Borrower pursuant to the
Facility Agreement.
(b) All rights of, and/or means of recourse available to, the
Guarantor as against the Additional Borrower as a result of
the subrogation described in Clause 4.(a), or under its direct
rights (if any) against the Additional Borrower, shall be
subordinated to the Lenders' rights against the Additional
Borrower arising under the Facility Agreement and shall be
deferred until such time as each Lender confirms that it has
---------------------------
(b) Being 115% of the maximum amount referred to in Whereas (B).
- 2 -
received all sums payable to it by the Additional Borrower and the
Additional Borrower has ceased to be an Additional Borrower under the
Facility Agreement.
(c) The Guarantor undertakes to collect, upon request from the Agent and
to the extent necessary to pay any amounts claimed under this
Guarantee and in order to give full effect to the terms contained in
Clause 4.(b), all amounts (or a portion thereof) payable to the
Guarantor by the Additional Borrower and to repay all or a portion of
such collected amounts to the Agent.
5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
(a) The Guarantor represents and warrants to the Agent that:
(i) As from the date on which the Guarantor acquires control over
the Additional Borrower, it will be fully aware of the
prospects and condition of the Additional Borrower's finances
and assets;
(ii) It is a corporation, duly incorporated and validly existing
under the laws of France and it has the power to enter into,
perform and deliver, and has taken all necessary action to
authorise its entry into, performance and delivery of the
Guarantee and the transactions contemplated by the Guarantee
(including the authorisation by its board of directors in
accordance with article L.225-35 of the French Code de
Commerce).;
(iii) Subject to Clause 18.15 of the Facility Agreement (Non
Applicability), delivery of the Accession Letter constitutes
confirmation by the Guarantor that the Repeating
Representations (as defined under the Facility Agreement) are
true and correct in relation to the Additional Borrower as at
the date of delivery as if made by reference to the facts and
circumstances then existing.
(b) Each of the aforementioned representations and warranties shall remain
in force and shall continue to be effective from the date of execution
of this Guarantee until the complete payment or discharge of all
amounts payable under this Guarantee.
6. FURTHER UNDERTAKINGS OF THE GUARANTOR
For the duration of this Guarantee and until all sums payable under
this Guarantee have been paid and all other obligations on the
Guarantor under this Guarantee have been satisfied, the Guarantor
undertakes:
(a) to hold (directly or indirectly) at least 50.01% of the
capital and voting rights in the Additional Borrower (a
"CONTROLLING STAKE") for so long as there are loans
outstanding under the Facility Agreement to the Additional
Borrower and unless such loans are repaid in full on or prior
to the date on which the Guarantor ceases to hold directly or
indirectly a Controlling Stake;
(b) to provide the Agent with any additional information or
estimates which the Agent may reasonably require from time to
time in accordance with Clause 19.4 of the Facility Agreement.
7. TAX
If, for any reason, the Guarantor has to deduct, withhold or levy any
amount from the sums payable by it under this Guarantee, such sums
shall to the extent permitted
- 3 -
by French Law be increased by the amount necessary to ensure that each
Lender receives, after any such deduction, withholding or other levy, a
net amount equal to that which it would have received if no such
deduction, withholding or levy had been made.
8. TERM - NOTICES
(a) This Guarantee shall terminate on 30 June 2009 or on such earlier date
as the Agent (acting on the instructions of the Lenders) may specify in
a notice of release. Any calls received after such date shall be
inoperative.
(b) Any communication to be made under or in connection with this Guarantee
shall be made in writing and, unless otherwise stated, may be made by
fax, letter or telex.
(c) The address, fax number and telex number (and the department or
officer, if any, for whose attention the communication is to be made)
of each party for any communication or document to be made or delivered
under or in connection with the Guarantee is:
(i) in the case of the Company:
Address: Sanofi-Synthelabo
[Address]
[Address]
Fax number: + [ ][________ ]
Attention: [______________]
(ii) in the case of the Agent:
Address: BNP Paribas
[Address]
[Address]
Fax number: + [ ][________ ]
Attention: [______________]
Or such other address as may be notified by either party to the other from time
to time.
9. MISCELLANEOUS PROVISIONS
(a) This Guarantee shall automatically benefit to each Lender under the
Facility Agreement without any notice or carrying of any formality.
(b) The Agent shall deliver a notice of release to the Guarantor when the
Additional Borrower ceases to be an Additional Borrower pursuant to
Clause 24.3(b) of the Facility Agreement (Resignation of a Borrower).
10. GOVERNING LAW/JURISDICTION
(a) This Guarantee is governed by French law.
(b) The Tribunal de Commerce de Paris has exclusive jurisdiction to settle
any dispute arising out of or in connection with this Guarantee
(including a dispute regarding the existence, validity or termination
of this Guarantee) (a DISPUTE). This clause is for the benefit of the
Agent and the Lenders only. As a result, neither the Agent nor the
Lenders shall be prevented from taking proceedings relating to a
Dispute in any
- 4 -
other courts with jurisdiction. To the extent allowed by law, the Agent
and/or the Lenders may take concurrent proceedings in any number of
jurisdictions.
Signed in [ ] in [ ] originals
On [ ]
------------------------------ ---------------------------
SANOFI-SYNTHELABO BNP PARIBAS
Represented by: [ ] Represented by: [ ]
- 5 -
ANNEXE 1
FORM OF NOTICE
[Letterhead of the Agent]
To: [the Guarantor]
[ ]
[ ]
Attention:
[Date]
Dear Sirs,
We refer to the first demand guarantee dated [--] entered into by your company
for the benefit of the Lenders under the Facility Agreement.
We request that you forthwith pay us (for the account of the Lenders) [currency
and amount] by way of a credit transfer to the following account: [--].
For information purposes only, we certify that an amount at least equal to the
amount claimed under this notice is due and payable but unpaid as at the date
hereof by [name of the relevant Additional Borrower] under the Facility
Agreement.
Yours faithfully,
[the Agent]
- 6 -
SCHEDULE 13
MATERIAL SUBSIDIARIES
1. Sanofi Winthrop Industries
2. Sanofi-Synthelabo Inc
3. Sanofi-Synthelabo France
4. Sanofi-Synthelabo Gmbh
- 7 -
SIGNATORIES
THE COMPANY
SANOFI-SYNTHELABO SA
BY: XXXX-XXXXXX XXXXX
THE MANDATED LEAD ARRANGERS, UNDERWRITERS AND JOINT-BOOK RUNNERS
BNP PARIBAS SA
BY: XXXX-XXXXX DUGUIT
XXXXXXX XXXXX CREDIT PRODUCTS LLC
BY: XXXXXXX XXXXXXX
THE ORIGINAL LENDERS
BNP PARIBAS SA
BY: XXXX-XXXXX DUGUIT
XXXXXXX XXXXX CREDIT PRODUCTS LLC
BY: XXXXXXX XXXXXXX
THE AGENT
BNP PARIBAS SA
BY: XXXX-XXXXX DUGUIT
THE PRESENTING BANK
BNP PARIBAS SA
BY: XXXX-XXXXX DUGUIT
- 8 -
